GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller WELLS FARGO BANK, N.A. Master Servicer and Securities Administrator CLAYTON FIXED INCOME SERVICES INC., Credit Risk Manager and DEUTSCHE BANK NATIONAL...
EXECUTION
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
XXXXX
FARGO BANK, N.A.
Master
Servicer and Securities Administrator
XXXXXXX
FIXED INCOME SERVICES INC.,
Credit
Risk Manager
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
Dated
as
of November 1, 2006
__________________________________
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Table
of Contents
Page
|
Section
1.01.
|
Defined
Terms.
|
4
|
|
Section
1.02.
|
Accounting.
|
41
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
42
|
|
|
Section
2.01.
|
Conveyance
of Mortgage Loans.
|
42
|
|
Section
2.02.
|
Acceptance
by Trustee.
|
46
|
|
Section
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
|
47
|
|
Section
2.04.
|
Representations
and Warranties of the Seller with Respect to the Mortgage
Loans.
|
51
|
|
Section
2.05.
|
[Reserved].
|
52
|
|
Section
2.06.
|
Representations
and Warranties of the Depositor.
|
52
|
|
Section
2.07.
|
Issuance
of Certificates.
|
54
|
|
Section
2.08.
|
Representations
and Warranties of the Seller.
|
54
|
|
Section
2.09.
|
Covenants
of the Seller.
|
56
|
|
ARTICLE
III ADMINISTRATION AND MASTER SERVICING OF
THE MORTGAGE LOANS; CREDIT RISK MANAGER
|
56
|
|
|
Section
3.01.
|
Master
Servicer to Service and Administer the Mortgage Loans.
|
56
|
|
Section
3.02.
|
REMIC-Related
Covenants.
|
58
|
|
Section
3.03.
|
Monitoring
of Servicers.
|
58
|
|
Section
3.04.
|
Fidelity
Bond.
|
59
|
|
Section
3.05.
|
Power
to Act; Procedures.
|
60
|
|
Section
3.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
61
|
|
Section
3.07.
|
Release
of Mortgage Files.
|
61
|
|
Section
3.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trust
Fund.
|
62
|
|
Section
3.09.
|
Standard
Hazard Insurance and Flood Insurance Policies
|
63
|
|
Section
3.10.
|
Presentment
of Claims and Collection of Proceeds.
|
63
|
|
Section
3.11.
|
Maintenance
of the Primary Insurance Policies.
|
64
|
|
Section
3.12.
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
64
|
|
Section
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
65
|
|
Section
3.14.
|
Additional
Compensation to the Master Servicer.
|
65
|
|
Section
3.15.
|
REO
Property.
|
65
|
|
Section
3.16.
|
Assessments
of Compliance and Attestation Reports.
|
66
|
|
Section
3.17.
|
Annual
Compliance Statement.
|
68
|
|
Section
3.18.
|
Xxxxxxxx-Xxxxx
Certification.
|
69
|
|
Section
3.19.
|
Reports
Filed with Securities and Exchange Commission.
|
69
|
|
Section
3.20.
|
Additional
Information.
|
75
|
|
Section
3.21.
|
Intention
of the Parties and Interpretation.
|
75
|
|
Section
3.22.
|
Indemnification.
|
76
|
|
Section
3.23.
|
[Reserved].
|
77
|
|
Section
3.24.
|
Closing
Opinion of Counsel.
|
77
|
|
Section
3.25.
|
[Reserved].
|
77
|
|
Section
3.26.
|
Merger
or Consolidation of the Master Servicer.
|
77
|
|
Section
3.27.
|
Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
|
77
|
|
Section
3.28.
|
Limitations
on Liability of the Master Servicer and Others; Indemnification
of Trustee
and Others.
|
78
|
|
Section
3.29.
|
Master
Servicer Not to Resign.
|
79
|
|
Section
3.30.
|
Successor
Master Servicer.
|
80
|
|
Section
3.31.
|
Sale
and Assignment of Master Servicing.
|
80
|
|
Section
3.32.
|
Reporting
Requirements of the Commission
|
81
|
|
Section
3.33.
|
Duties
of the Credit Risk Manager.
|
81
|
|
Section
3.34.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
82
|
|
Section
3.35.
|
Indemnification
by the Credit Risk Manager.
|
83
|
|
Section
3.36.
|
Removal
of Credit Risk Manager.
|
83
|
|
ARTICLE
IV ACCOUNTS
|
83
|
|
|
Section
4.01.
|
Servicing
Accounts
|
83
|
|
Section
4.02.
|
Distribution
Account.
|
85
|
|
Section
4.03.
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
86
|
|
Section
4.04.
|
Yield
Maintenance Account; Collateral Account.
|
89
|
|
ARTICLE
V FLOW OF FUNDS
|
91
|
|
|
Section
5.01.
|
Distributions.
|
91
|
|
Section
5.02.
|
[Reserved].
|
94
|
|
Section
5.03.
|
Allocation
of Realized Losses.
|
94
|
|
Section
5.04.
|
Statements.
|
95
|
|
Section
5.05.
|
Remittance
Reports; Advances.
|
98
|
|
Section
5.06.
|
Compensating
Interest Payments.
|
99
|
|
Section
5.07.
|
Basis
Risk Reserve Fund.
|
99
|
|
Section
5.08.
|
Recoveries.
|
100
|
|
Section
5.09.
|
Final
Maturity Reserve Trust.
|
100
|
|
ARTICLE
VI THE CERTIFICATES
|
101
|
|
|
Section
6.01.
|
The
Certificates.
|
101
|
|
Section
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
103
|
|
Section
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
112
|
|
Section
6.04.
|
Persons
Deemed Owners.
|
112
|
|
Section
6.05.
|
Appointment
of Paying Agent.
|
112
|
|
ARTICLE
VII DEFAULT
|
113
|
|
|
Section
7.01.
|
Events
of Default.
|
113
|
|
Section
7.02.
|
Trustee
to Act.
|
115
|
|
Section
7.03.
|
Waiver
of Event of Default.
|
116
|
|
Section
7.04.
|
Notification
to Certificateholders.
|
117
|
|
ARTICLE
VIII THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
117
|
|
|
Section
8.01.
|
Duties
of the Trustee and the Securities Administrator.
|
117
|
|
Section
8.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
119
|
|
Section
8.03.
|
Trustee
and Securities Administrator Not Liable for Certificates or Mortgage
Loans.
|
120
|
|
Section
8.04.
|
Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
|
122
|
|
Section
8.05.
|
Trustee’s
and Securities Administrator’s Fees and Expenses.
|
122
|
|
Section
8.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
122
|
|
Section
8.07.
|
Resignation
or Removal of Trustee and Securities Administrator.
|
123
|
|
Section
8.08.
|
Successor
Trustee and Successor Securities Administrator.
|
124
|
|
Section
8.09.
|
Merger
or Consolidation of Trustee or Securities
Administrator.
|
125
|
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
125
|
|
Section
8.11.
|
Limitation
of Liability.
|
126
|
|
Section
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
126
|
|
Section
8.13.
|
Suits
for Enforcement.
|
127
|
|
Section
8.14.
|
Waiver
of Bond Requirement.
|
127
|
|
Section
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
127
|
|
Section
8.16.
|
Appointment
of Custodians.
|
128
|
|
Section
8.17.
|
Limitation
of Liability of Trustee and Administrator;
Indemnification.
|
128
|
|
ARTICLE
IX REMIC ADMINISTRATION
|
128
|
|
|
Section
9.01.
|
REMIC
Administration.
|
128
|
|
Section
9.02.
|
Prohibited
Transactions and Activities.
|
131
|
|
ARTICLE
X TERMINATION
|
132
|
|
|
Section
10.01.
|
Termination.
|
132
|
|
Section
10.02.
|
Additional
Termination Requirements.
|
134
|
|
ARTICLE
XI DISPOSITION OF TRUST FUND ASSETS
|
134
|
|
|
Section
11.01.
|
Disposition
of Trust Fund Assets.
|
134
|
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
135
|
|
|
Section
12.01.
|
Amendment.
|
135
|
|
Section
12.02.
|
Recordation
of Agreement; Counterparts.
|
136
|
|
Section
12.03.
|
Limitation
on Rights of Certificateholders.
|
136
|
|
Section
12.04.
|
Governing
Law; Jurisdiction.
|
137
|
|
Section
12.05.
|
Notices.
|
137
|
|
Section
12.06.
|
Severability
of Provisions.
|
138
|
|
Section
12.07.
|
Article
and Section References.
|
138
|
|
Section
12.08.
|
Notices
to the Rating Agencies.
|
139
|
|
Section
12.09.
|
Further
Assurances.
|
140
|
|
Section
12.10.
|
Benefits
of Agreement.
|
140
|
|
Section
12.11.
|
Acts
of Certificateholders.
|
140
|
|
Section
12.12.
|
Successors
and Assigns.
|
141
|
|
Section
12.13.
|
Provision
of Information.
|
141
|
|
EXHIBITS
AND SCHEDULES:
|
||
|
Exhibit
A-1
|
Form
of A Certificate
|
X-0
|
|
Xxxxxxx
X-0
|
Form
of Class X Certificate
|
A-2
|
|
Exhibit
B
|
Form
of Class A-R Certificate
|
B-1
|
|
Exhibit
C
|
Form
of Subordinate Certificate
|
C-1
|
|
Exhibit
D
|
Form
of Class P Certificate
|
D-1
|
|
Exhibit
E
|
Form
of Reverse of the Certificates
|
E-1
|
|
Exhibit
F
|
Request
for Release
|
F-1
|
|
Exhibit
G-1
|
Form
of Receipt of Mortgage Note
|
G-1-1
|
|
Exhibit
G-2
|
Form
of Interim Certification of Trustee
|
G-2-1
|
|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3-1
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H-1
|
|
Exhibit
I-1
|
Form
of ERISA Representation Class A-R
|
I-1-1
|
|
Exhibit
I-2
|
Form
of ERISA Representation For ERISA-Restricted Certificates
|
I-2-1
|
|
Exhibit
J-1
|
Form
of Investment Letter Non-Rule 000X
|
X-0-0
|
|
Xxxxxxx
X-0
|
Form
of Rule 144A Investment Letter
|
J-2-1
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K-1
|
|
Exhibit
L
|
Transfer
Affidavit for Residual Certificate Pursuant to
|
|
|
Section
6.02(e)
|
L-1
|
|
|
Exhibit
M
|
List
of Servicers and Servicing Agreements
|
M-1
|
|
Exhibit
N-1
|
Form
of Transfer Certificate (Restricted Global Security to
|
|
|
Regulation
S Security)
|
N-1-1
|
|
|
Exhibit
N-2
|
Form
of Transfer Certificate (Regulation S Security to
|
|
|
Restricted
Global Security)
|
N-2-1
|
|
|
Exhibit
O
|
Transaction
Parties
|
O
|
|
Exhibit
P
|
Purchase
Agreements
|
P
|
|
Exhibit
Q
|
Relevant
Servicing Criteria
|
Q
|
|
Exhibit
R
|
Additional
Form 10-D Disclosure
|
R
|
|
Exhibit
S
|
Additional
Form 10-K Disclosure
|
S
|
|
Exhibit
T
|
Additional
Form 8-K Disclosure
|
T
|
|
Exhibit
U
|
Additional
Disclosure Notification
|
U
|
|
Exhibit
V-1
|
Form
of Watchlist Report
|
V-1
|
|
Exhibit
V-2
|
Form
of Loss Severity Report
|
V-2
|
|
Exhibit
V-3
|
Form
of Prepayment Premiums Report
|
V-3
|
|
Exhibit
V-4
|
Form
of Analytics Report
|
V-4
|
|
Exhibit
W
|
Form
of Certification to be Provided by the Credit Risk Manager
|
W
|
|
Exhibit
X
|
Yield
Maintenance Agreement
|
Y
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
|
Schedule
II
|
Final
Maturity Reserve Schedule
|
This
Pooling and Servicing Agreement is dated as of November 1, 2006 (the
“Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller
(the “Seller”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”),
XXXXXXX FIXED INCOME SERVICES INC., as credit risk manager (the “Credit Risk
Manager”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the “Trustee”)
and as
custodian.
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series
2006-13 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust
Fund,
the primary assets of which are the Mortgage Loans (as defined
below).
The
Depositor intends to sell the Certificates, to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund. The Certificates will consist of ten classes of
certificates, designated as (i) the Class A Certificates, (ii) the Class X
Certificates, (iii) the Class A-R Certificates, (iv) the Class B-1 Certificates,
(v) the Class B-2 Certificates, (vi) the Class B-3 Certificates, (vii) the
Class
B-4 Certificates, (viii) the Class B-5 Certificates, (ix) the Class B-6
Certificates and (x) the Class P Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held
in the
Basis Risk Reserve Fund, the Yield Maintenance Account, the Yield Maintenance
Agreement, the Final Maturity Reserve Trust, the Final Maturity Reserve Account
and the Collateral Account (the “Excluded
Trust Property”))
comprises two REMICs in a tiered REMIC structure: the “Lower-Tier
REMIC”
and
the
“Upper-Tier
REMIC.”
Each
Certificate, other than the Class A-R Certificates, shall represent ownership
of
a regular interest in the Upper-Tier REMIC, as described herein. The Class
A,
Class B-1, Class B-2 and Class B-3 Certificates represent the right to receive
(i) payments in respect of Basis Risk Shortfalls from the Basis Risk Reserve
Fund as provided in Section 5.07 and (ii) payments in respect of Basis Risk
Shortfalls from the Yield Maintenance Account as provided in Section 5.01(g).
The owners of the Class X Certificates beneficially own the Basis Risk Reserve
Fund, the Yield Maintenance Account, the Final Maturity Reserve Account and
the
Final Maturity Reserve Trust. Each Class of Certificates (other than the
Class X
Certificates) represents the right to receive payments in respect of the
Final
Maturity Reserve Account. The Class A-R Certificate represents the sole class
of
residual interest in the Upper-Tier REMIC, as well as the sole residual interest
in the Lower-Tier REMIC.
The
Lower-Tier REMIC will hold as its assets all of the assets constituting the
Trust Fund (exclusive of the Excluded Trust Property) and shall issue 12
uncertificated interests, 11 of which shall be the “Lower-Tier
Regular Interests”
and
one
residual interest (the “LT-R
Interest”),
which
will represent the sole class of residual interest in the Lower-Tier REMIC.
The
Trustee will hold the Lower-Tier Regular Interests as assets of the Upper-Tier
REMIC.
For
purposes of the REMIC Provisions, the startup day for each REMIC created hereby
is the Closing Date. All REMIC regular and residual interests created hereby
will be retired on or before the Latest Possible Maturity Date.
Lower-Tier
REMIC Interests
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in the Lower-Tier
REMIC:
|
Lower-Tier
REMIC
Interest
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Corresponding
Class of Certificates
|
|||||||
|
LT-A
|
(1)
|
|
$
|
380,792,000.00
|
A
|
|||||
|
LT-AR
|
(1)
|
|
$
|
100.00
|
A-R
|
|||||
|
LT-B1
|
(1)
|
|
$
|
8,865,000.00
|
B-1
|
|||||
|
LT-B2
|
(1)
|
|
$
|
4,433,000.00
|
B-2
|
|||||
|
LT-B3
|
(1)
|
|
$
|
22,000.00
|
B-3
|
|||||
|
LT-B4
|
(1)
|
$
|
2,619,000.00
|
B-4
|
||||||
|
LT-B5
|
(1)
|
|
$
|
1,813,000.00
|
B-5
|
|||||
|
LT-B6
|
(1)
|
|
$
|
1,410,689.00
|
B-6
|
|||||
|
LT-P
|
(1)
|
$
|
100.00
|
P
|
||||||
|
LT-I
|
(2)
|
(2)
|
|
N/A
|
||||||
|
LT-R
|
(3)
|
(3)
|
|
N/A
|
||||||
__________________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Regular Interests is
a per
annum rate equal to the Net WAC.
|
|
(2)
|
The
LT-I Interest is an interest only interest that does not have a principal
balance but has a notional amount as of any Distribution Date equal
to the
Stated Principal Balances of the Mortgage Loans as of the first day
of the
related Due Period (or in the case of the first Distribution Date,
as of
the Cut-Off Date). For any Distribution Date before the Distribution
Date
in December 2026, it shall bear interest for the related Accrual
Period at
a fixed rate of 0.00%, and for each Distribution Date commencing
on the
Distribution Date in December 2026 and on each Distribution Date
thereafter until the Final Maturity Reserve Termination Date, it
shall
bear interest for the related Accrual Period at a fixed rate equal
to the
Final Maturity Reserve Rate.
|
|
(3)
|
The
LT-R Interest is the sole Class of residual interest in the Lower-Tier
REMIC. It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, Available Funds, shall be allocated among the Lower-Tier
Interests in the following order of priority:
|
(i)
|
to
each Lower-Tier Interest until its principal balance equals the Class
Principal Balance of the Corresponding Class of Certificates immediately
after such Distribution Date;
|
|
(ii)
|
to
each Lower-Tier Interest, interest at the interest rates described
above;
and
|
2
|
(iii)
|
to
the
LT-R Interest, any remaining
amounts.
|
On
any
Distribution Date, after taking into account principal distributions under
priorities (i) and (ii) above, Realized Losses shall be allocated among the
Lower-Tier Interests in the same order of priority in which principal is
distributed among such Lower-Tier Interests pursuant to priority (i)
above.
On
each
Distribution Date, Prepayment Premium Amounts shall be distributed to the LT-P
Interest.
The
Certificates
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, and Original Class Principal Balance (or Original Class Notional Balance)
for each Class of Certificates comprising interests in the Trust Fund created
hereunder. Each Class of Certificates, other than the Class A-R Certificates,
is
hereby designated as representing ownership of regular interests in the
Upper-Tier REMIC.
|
Original
Class Principal
Balance
or Class Notional Balance
|
Pass-Through
Rate
|
|
|
Class
A
|
$380,792,000.00
|
(1)
|
|
Class X
|
Class
X Notional Balance (2)
|
(1)
|
|
Class
A-R
|
$
100.00 (3)
|
(3)
|
|
Class
B-1
|
$
8,865,000.00
|
(1)
|
|
Class
B-2
|
$
4,433,000.00
|
(1)
|
|
Class
B-3
|
$
3,022,000.00
|
(1)
|
|
Class
B-4
|
$
2,619,000.00
|
(1)
|
|
Class
B-5
|
$
1,813,000.00
|
(1)
|
|
Class
B-6
|
$
1,410,689.00
|
(1)
|
|
Class
P
|
$
100.00
|
(4)
|
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(2)
|
For
purposes of the REMIC provisions, the Class X Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the Class A, Class B-1, Class B-2 and Class B-3 Certificates.
The Class
X Certificates are interest-only certificates and will not be entitled
to
distributions of principal. In addition, the Class X Certificates
shall
also evidence ownership of the LT-I Interest in the Lower-Tier
REMIC
|
|
(3)
|
For
purposes of the REMIC provisions, the Class A-R Certificate represents
ownership of the Class LT-R Interest and the sole class of residual
interest in the Upper-Tier REMIC.
|
|
(4)
|
The
Class P Certificate shall not bear interest at a stated rate. The
Class P
Certificate shall have an initial Class Principal Balance of $100.00.
Prepayment Premium Amounts paid with respect to the Mortgage Loans
shall
be distributed to the Class P
Certificates.
|
3
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to any Servicer), or (y) as provided in
the
Servicing Agreements, to the extent applicable to the Servicers, but in no
event
below the standard set forth in clause (x).
“Account”:
The
Distribution Account, the Yield Maintenance Account, the Final Maturity Reserve
Account, the Basis Risk Reserve Fund or each Servicing Account, as the context
requires.
“Accrual
Period”:
With
respect to each Distribution Date and the LIBOR Certificates, the period
beginning on the immediately preceding Distribution Date (or the Closing Date,
in the case of the first Distribution Date) and ending on the day immediately
preceding such Distribution Date. Interest for such Classes of Certificates
will
be calculated based upon a 360-day year and the actual number of days in each
Accrual Period. With respect to each Distribution Date and any Class of Lower
Tier Regular Interests and the Class A-R, Class X, Class B-4, Class B-5 and
Class B-6 Certificates, the calendar month prior to the month of such
Distribution Date. Interest for such Lower Tier Regular Interests and such
Classes will be calculated based upon a 360-day year consisting of twelve 30-day
months in each Accrual Period.
“Additional
Disclosure Notification”:
As
defined in Section 3.19(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.19(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.19(b).
“Adjustment
Date”:
With
respect to each Mortgage Loan, each adjustment date on which the related Loan
Rate changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage
Loan Schedule.
“Advance”:
With
respect to any Distribution Date and any Mortgage Loan or REO Property, any
advance made by the Master Servicer (including, without limitation, the Trustee
in its capacity as successor Master Servicer) in respect of such Distribution
Date pursuant to Section 5.05 (or by the Trustee pursuant to Section 7.02 as
successor Master Servicer) or by a Servicer in accordance with the related
Servicing Agreement.
4
“Adverse
REMIC Event”:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of the
Code, for any group of assets identified as a REMIC in the Preliminary Statement
to this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions, and the tax imposed under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction the numerator
of
which is the aggregate of the Class Principal Balance of the Subordinate
Certificates and the denominator of which is the Pool Balance for such
Distribution Date.
“Agreement”:
This
Pooling and Servicing Agreement, dated as of November 1, 2006, as amended,
supplemented and otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(d).
“Assignment”:
With
respect to any Mortgage, an assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient, under the laws
of the jurisdiction in which the related Mortgaged Property is located, to
reflect or record the sale of such Mortgage.
“Available
Funds”:
With
respect to any Distribution Date, an amount equal to (i) the sum, without
duplication, of (a) the aggregate of the Monthly Payments received on or
prior to the related Determination Date (excluding Monthly Payments due in
future Due Periods but received by the related Determination Date) in respect
of
the Mortgage Loans, (b) Net Liquidation Proceeds, Insurance Proceeds
(including from primary mortgage insurance policies), Principal Prepayments
(excluding Prepayment Premium Amounts), Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans received
during the related Prepayment Period, (c) the aggregate of any amounts received
in respect of REO Properties for such Distribution Date in respect of the
Mortgage Loans, (d) the aggregate of any amounts of Interest Shortfalls
(excluding for such purpose all shortfalls as a result of Relief Act Reductions)
paid by the Servicers pursuant to the related Servicing Agreements and
Compensating Interest Payments deposited in the Distribution Account for that
Distribution Date in respect of the Mortgage Loans, (e) the aggregate of
the Purchase Prices, Substitution Adjustments Repurchase Prices and other
amounts collected for purchases pursuant to Sections 2.03 or 3.25 or
substitutions pursuant to Section 2.03 deposited in the Distribution Account
during the related Prepayment Period in respect of the Mortgage Loans,
(f) the aggregate of any Advances made by the Servicers and Advances made
by the Master Servicer for such Distribution Date in respect of the Mortgage
Loans, (g) the aggregate of any Advances made by the Trustee as successor
Master Servicer for that Distribution Date pursuant to Section 7.02 hereof
in
respect of the Mortgage Loans and (h) the Termination Price on the
Distribution Date on which the Trust Fund is terminated pursuant to Section
10.01; minus
(ii) the sum of (v) to the extent of amounts attributable to interest, the
Expense Fees for such Distribution Date in respect of the Mortgage Loans, (w)
to
the extent of amounts attributable to interest or principal, as applicable,
amounts in reimbursement for Advances previously made in respect of the Mortgage
Loans and other amounts as to which the Servicers, the Securities Administrator,
the Master Servicer, the Trustee, the Credit Risk Manager and the Custodian
are
entitled to be reimbursed pursuant to Section 4.03, (x) first, to the extent
of
amounts attributable to interest, and second, if such amounts are insufficient,
to the extent of amounts attributable to principal, the amount payable to the
Trustee, the Master Servicer, the Securities Administrator and the Custodian
pursuant to Sections 3.27(b), 3.28(c) and 8.05 hereof in respect of the Mortgage
Loans, and (y) amounts deposited in the Distribution Account, as the case may
be, in error, in respect of the Mortgage Loans, in each case without
duplication.
5
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Reserve Fund”:
A fund
created as part of the Trust Fund pursuant to Section 5.07 of this Agreement
but
which is not an asset of any of the REMICs.
“Basis
Risk Shortfall”:
With
respect to any Distribution Date and the LIBOR Certificates, the sum
of:
(i) the
excess, if any, of the Interest Distributable Amount that such Class would
have
been entitled to receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the actual
Interest Distributable Amount such Class is entitled to receive for such
Distribution Date (computed without regard to any allocation of Net Interest
Shortfalls);
(ii) any
excess described in clause (i) above remaining unpaid from prior Distribution
Dates; and
(iii) interest
for the applicable Accrual Period on the amount described in clause (ii) above
based on the applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than the
Physical Certificates shall be Book-Entry Certificates.
“Bulk
PMI Fee”:
Not
applicable.
“Bulk
PMI Fee Rate”:
Not
applicable.
6
“Bulk
PMI Policy”:
Not
applicable.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, the State of Maryland, the State of
Minnesota, the State of Texas, the State of New York or in the city in which
the
Corporate Trust Office of the Trustee or the Securities Administrator is located
are authorized or obligated by law or executive order to be closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust Fund pursuant to the second
paragraph of Section 10.01(a) hereof.
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate, Residual Certificate Class or Class P
Certificate.
“Certificate
Notional Balance”:
With
respect to each Certificate of any Class of Interest-Only Certificates and
any
date of determination, the product of (i) the Class Notional Balance of such
Class and (ii) the applicable Percentage Interest of such
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a given Class (other than any Interest-Only
Certificate) and any date of determination, the product of (i) the Class
Principal Balance of such Class and (ii) the applicable Percentage Interest
of
such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02 hereof.
Xxxxx Fargo Bank, N.A. shall act as Certificate Registrar, for so long as it
is
the Securities Administrator under this Agreement.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a Holder
of the Residual Certificate for any purpose hereof; provided
that
solely for the purposes of taking any action or giving any consent pursuant
to
this Agreement, any Certificate registered in the name of the Depositor, the
Securities Administrator, the Master Servicer, the Trustee, any Servicer, the
Credit Risk Manager or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to effect
any such consent has been obtained, except that, in determining whether the
Trustee shall be protected in relying upon any such consent, only Certificates
which a Responsible Officer of the Trustee knows to be so owned shall be
disregarded.
“Certification
Parties”:
As
defined in Section 3.18.
“Certifying
Person”:
As
defined in Section 3.18.
7
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
Notional Balance”:
With
respect to the Class X Certificates and any Distribution Date, the Class X
Notional Balance.
“Class
P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Premium Amounts in respect
of
the Mortgage Loans received by the Servicers for the related Prepayment Period
plus, on the first Distribution Date after which no Mortgage Loan is subject
to
payment of a Prepayment Premium Amount, $100.
“Class
Principal Balance”:
As to
any Distribution Date, with respect to any Class of Certificates (other than
the
Interest-Only Certificates), the Original Class Principal Balance thereof as
reduced by the sum of (x) all amounts actually distributed in respect of
principal of that Class on all prior Distribution Dates, (y) all Realized
Losses, if any, actually allocated to that Class on all prior Distribution
Dates
and (z) any applicable Writedown Amount; provided,
however,
that
pursuant to Section 5.08, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated to
such Class pursuant to Section 5.03 in the event that there is a Recovery on
a
Mortgage Loan, and the Certificate Principal Balance of any individual
Certificate of such Class will be increased by its pro
rata
share of
the increase to such Class.
“Class
Subordination Percentage”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of such Class immediately before such Distribution Date and
the denominator of which is the aggregate of the Class Principal Balances of
all
Classes of Certificates immediately before such Distribution Date.
“Class
X Certificate”:
Any of
the Class X Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and therein.
“Class
X Notional Balance”:
For
the Class X Certificates and for any Distribution Date, the aggregate Class
Principal Balance of the LIBOR Certificates immediately prior to such
Distribution Date (initially, equal to $397,112,000.00).
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
December 13, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Collateral
Account”:
The
account established and maintained by the Trustee in accordance with the
provisions of Section 4.04.
8
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an
amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all shortfalls
as
a result of Relief Act Reductions) required to be paid by the Servicers pursuant
to the related Servicing Agreement with respect to such Distribution Date,
exceeds (y) the aggregate amount actually paid by the Servicers in respect
of
such shortfalls; provided,
that
such amount, to the extent payable by the Master Servicer or the Trustee as
successor master servicer, shall not exceed the aggregate Master Servicing
Fee
that would be payable to the Master Servicer in respect of such Distribution
Date without giving effect to any Compensating Interest Payment.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
With
respect to any Cooperative Loan, (i) the Cooperative Shares, together with
a
stock power in blank; (ii) the original or a copy of the executed Security
Agreement and the assignment of the Security Agreement in blank; (iii) the
original or a copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original, if available,
or
a copy of the executed Recognition Agreement and, if available, the original
assignment of the Recognition Agreement (or a blanket assignment of all
Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing
statement with evidence of recording thereon, which has been filed in all places
required to perfect the security interest in the Cooperative Shares and the
Proprietary Lease; and (vi) executed UCC amendments (or copies thereof) or
other
appropriate UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with evidence
of
recording thereon (or in a form suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: HarborView 2006-13, or at such other address as
the
Trustee may designate from time to time by notice to the Certificateholders,
the
Depositor, the Master Servicer, the Securities Administrator and the Seller.
With respect to the Securities Administrator and the Certificate Registrar
and
(i) presentment of Certificates for registration of transfer, exchange or final
payment, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust, HarborView Mortgage Loan Trust
2006-13, and (ii) for all other purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000
(or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
21045), Attention: Corporate Trust, HarborView 2006-13.
9
“Corresponding
Class”:
With
respect to each class of Lower-Tier Regular Interests, the Class or Classes
of
Certificates corresponding to such Class as set forth in the Preliminary
Statement.
“Credit
Risk Management Agreement”:
Either
(i) any of the credit risk management agreements dated as of the Closing Date,
entered into by the related Servicer and the Credit Risk Manager or (ii) the
credit risk management agreement dated as of the Closing Date, entered into
by
the Master Servicer and the Credit Risk Manager, as applicable.
“Credit
Risk Manager”:
Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and its successors
and assigns.
“Credit
Risk Manager Fee”:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
“Credit
Risk Manager Fee Rate”:
0.0050% per annum.
“Current
Interest”:
With
respect to each Class of Certificates (other than the Class P Certificates)
and
any Distribution Date an amount equal to the sum of (i) interest accrued during
the related Accrual Period at the applicable Pass-Through Rate on the Class
Certificate Principal Balance or Class Certificate Notional Balance, as
applicable, of that Class immediately prior to such Distribution Date, plus
(ii)
the excess of the amount determined under clause (i) above for all prior
Distribution Dates over the amount actually distributed as interest on such
Class on such Prior Distribution Dates. Notwithstanding the foregoing, however,
on any Distribution Date for which there exists a Net Interest Shortfall, the
Net Interest Shortfall shall be apportioned among the Classes of Certificates
then outstanding in proportion to and in reduction of the amount that would
have
been the Current Interest for such Distribution Date but for the existence
of
such Net Interest Shortfall.
“Custodial
Agreement”:
Not
applicable.
“Custodian”:
Deutsche Bank National Trust Company, and its successors acting as custodian
of
the Mortgage Files, as indicated on the Mortgage Loan Schedule.
“Cut-Off
Date”:
With
respect to any Mortgage Loan other than a Qualified Substitute Mortgage Loan,
the Close of Business in New York City on November 1, 2006. With respect to
any
Qualified Substitute Mortgage Loan, the date designated as such on the Mortgage
Loan Schedule (as amended).
10
“Cut-Off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-Off Date Principal Balances of all of the Mortgage
Loans.
“Cut-Off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-Off Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, unless the reduction results from a Deficient
Valuation.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the Servicing Agreements, on which the Servicers determine the amount of
all
funds required to be remitted to the Master Servicer on the Servicer Remittance
Date with respect to the Mortgage Loans it is servicing.
11
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Securities Administrator based upon an Opinion
of Counsel provided to the Securities Administrator by nationally recognized
counsel acceptable to the Securities Administrator that the holding of an
ownership interest in the Residual Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the transfer
of an ownership interest in the Residual Certificate to such
Person.
“Distressed
Mortgage Loan”:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer on behalf of the Trust
Fund
has accepted a deed in lieu of foreclosure.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof for the benefit of the Certificateholders which
shall be entitled “Distribution Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator for Deutsche Bank National Trust Company, as Trustee, in trust
for
the registered Holders of HarborView Mortgage Loan Trust, Mortgage Loan
Pass-Through Certificates, Series 2006-13” and which must be an Eligible
Account.
“Distribution
Account Income”:
With
respect to any Distribution Date, any interest or other investment income earned
on funds deposited in the Distribution Account during the month of such
Distribution Date.
“Distribution
Date”:
The
19th day of each month, or, if such day is not a Business Day, the next Business
Day commencing in December 2006.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Xxxxxx”:
Xxxxxx
Savings and Loan Association, F.A., and its successors and assigns, in its
capacity as Originator of the Xxxxxx Mortgage Loans.
“Xxxxxx
Mortgage Loans”:
The
Mortgage Loans for which Xxxxxx is listed as “Originator” on the Mortgage Loan
Schedule.
“Xxxxxx
Purchase Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of December
1,
2005, between GCFP, as purchaser, and Xxxxxx, as seller, as the same may be
amended from time to time, and any assignments and conveyances related to the
Xxxxxx Mortgage Loans.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
12
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day of
the
month preceding the month in which such Distribution Date occurs and ending
on
the first day of the month in which such Distribution Date occurs.
“Eligible
Account”:
Any
of:
(i) an
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term rating
category of each Rating Agency at the time any amounts are held on deposit
therein;
(ii) an
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Securities Administrator and the Trustee and to each Rating Agency, the Trustee
on behalf of the Certificateholders will have a claim with respect to the funds
in the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iv) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class B-4, Class B-5, Class B-6 Certificates, the Class P Certificate and
the Residual Certificate, (ii) any
other Certificates that are not rated at least “BBB-” (or its equivalent) by at
least one Rating Agency upon acquisition or (iii) in general,
any
Certificate that does not satisfy the applicable rating requirement under the
Underwriter’s Exemption.
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
“Event
of Default”:
In
respect of the Master Servicer, one or more of the events (howsoever described)
set forth in Section 7.01 hereof as an event or events upon the occurrence
and
continuation of which the Master Servicer may be terminated.
13
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Expense
Fee”
With
respect to any Mortgage Loan, the sum of (i) the Master Servicing Fee, (ii)
the
Servicing Fee with respect to the Servicers and (iii) the Credit Risk Manager
Fee.
“Expense
Fee Rate”:
With
respect to any Mortgage Loan, the per annum rate at which the Expense Fee
accrues for such Mortgage Loan as set forth in the Mortgage Loan
Schedule.
“Xxxxxx
Xxx”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”:
The
Distribution Date occurring in December 2036.
“Final
Maturity Reserve Account”:
The
account created pursuant to Section 5.09 of this Agreement.
“Final
Maturity Reserve Amount”:
With
respect to each Distribution Date prior to the Distribution Date in December
2026, zero. On the Distribution Date in December 2026 and on each Distribution
Date thereafter until the Final Maturity Reserve Termination Date, an amount
equal to the lesser of (x) the product of (i) the Final Maturity Reserve Rate
divided by 12 and (ii) the aggregate Stated Principal Balance of the Mortgage
Loans, (y) the interest portion of Available Funds before taking into account
any distributions pursuant to Section 5.01(a) of this Agreement and after
payment of any fees and expenses of the Trust pursuant to this Agreement and
(z)
the Final Maturity Reserve Shortfall Amount. No deposit is required on any
Distribution Date if the aggregate Stated Principal Balance of Mortgage Loans
having 40-year original terms to maturity on such Distribution Date is less
than
or equal to the aggregate principal balance set forth in the Final Maturity
Reserve Schedule for such Distribution Date.
“Final
Maturity Reserve Rate”:
A per
annum rate equal to the product of (i) 0.80%
and
(ii) a fraction, the numerator of which is the aggregate Stated Principal
Balance as of the applicable Cut-off Date of the Mortgage Loans having 40-year
original terms to maturity and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
“Final
Maturity Reserve Schedule”:
With
respect to each Distribution Date on or after the Distribution Date in December
2026 through the Final Maturity Reserve Termination Date, the aggregate
principal balance set forth on Schedule II hereto for that Distribution
Date.
“Final
Maturity Reserve Shortfall Amount”:
For
each Distribution Date, the lesser of (i) $5,293,604.00 or
(ii) a
fraction, the numerator of which is the Stated Principal Balance of the Mortgage
Loans having 40-year original terms to maturity on such Distribution Date and
the denominator of which is the aggregate Class Principal Balance of the
Certificates (other than any Interest-Only Certificates).
14
“Final
Maturity Reserve Termination Date”:
With
respect to each Distribution Date on or after the Distribution Date in December
2026, the earlier of (i) the Distribution Date in June 2036 or (ii) the
termination of the Trust Fund.
“Final
Maturity Reserve Trust”:
The
corpus of a trust created pursuant to Section 5.09 of this Agreement and
designated as the “Final Maturity Reserve Trust,” consisting of the Final
Maturity Reserve Account, but which is not an asset of any REMIC.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or as
contemplated by Sections 2.03, 3.25 and 10.01), a determination made by the
related Servicer, reported to the Master Servicer, that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the related Servicer
expects to be finally recoverable in respect thereof have been so recovered.
“First
Republic”:
First
Republic Bank, and its successors and assigns, in its capacity as Originator
of
the First Republic Mortgage Loans.
“First
Republic Mortgage Loans”:
The
Mortgage Loans for which First Republic is listed as “Originator” on the
Mortgage Loan Schedule.
“First
Republic Purchase Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of July 1,
2003,
as amended and restated to and including February 1, 2006, between GCFP, as
purchaser, and First Republic, as seller, as the same may be amended from time
to time, and any assignments and conveyances related to the First Republic
Mortgage Loans.
“Fitch”:
Fitch
Ratings, Inc., or any successor thereto.
“Form
8-K Disclosure Information”:
As
defined in Section 3.19(c).
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors and
assigns.
“GMAC”:
GMAC
Mortgage, LLC (as successor in interest to GMAC Mortgage Corporation), and
any
successors thereto, in its capacity as Originator of the GMAC Mortgage
Loans.
“GMAC
Mortgage Loans”:
The
Mortgage Loans for which GMAC is listed as “Originator” on the Mortgage Loan
Schedule.
“GMAC
Purchase Agreement”:
The
Master Flow Sale and Servicing Agreement dated and effective as of April 1,
2004, between the GCFP and GMAC (Adjustable Rate Conventional Mortgage Loans,
Group No. 2004-NC1), as amended by Amendment Number One, dated as of September
29, 2005, and as amended by Amendment Number Two, dated as of September 29,
2005, as the same may be amended from time to time, and any assignments and
conveyances related to the GMAC Mortgage Loans.
15
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Depositor, the Securities Administrator
(in
all capacities hereunder) and the Custodian and their respective officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions and (D) is not a member of the immediate family
of
a Person defined in clause (B) or (C) above.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate other than the Interest-Only Certificates, the amount
designated “Initial Certificate Principal Balance” on the face
thereof.
“Initial
Certificate Notional Balance”:
With
respect to the Interest-Only Certificates, the amount designated “Initial
Certificate Notional Balance” on the face thereof.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the related Servicing
Agreement.
“Interest-Only
Certificate”:
Any of
the Class X Certificates.
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act or similar state or local law, an
amount determined as follows:
16
(a) Principal
Prepayments in part received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate for
such Mortgage Loan on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the applicable
Net Loan Rate) received at the time of such prepayment; and
(b) Principal
Prepayments in full received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) received at the time
of
such prepayment; and
(c) any
Relief Act Reductions for such Distribution Date.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-Off Date, the Distribution Date following the fifth
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-Off Date.
“Lender-Paid
Mortgage Insurance Loan”:
Not
Applicable.
“LIBOR”:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on the Telerate Page 3750, as
of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will obtain such rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination Date, LIBOR for
such
date will be the most recently published Interest Settlement Rate. In the event
that the BBA no longer sets an Interest Settlement Rate, the rate for such
date
will be determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00 am (London
time) on such date to prime banks in the London interbank market. In such event,
the Securities Administrator will request the principal London office of each
of
the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of
the quotations (rounded upwards if necessary to the nearest whole multiple
of
1/16%). If fewer than two quotations are provided as requested, the rate for
that date will be the arithmetic mean of the rates quoted by major banks in
New
York City, selected by the Securities Administrator (after consultation with
the
Depositor), at approximately 11:00 a.m. (New York City time) on such date for
one-month U.S. dollar loan to leading European banks.
17
(b) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Pass-Through Rate applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class A, Class B-1, Class B-2 and Class B-3 Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
With
respect to any Distribution Date, any Mortgage Loan in respect of which the
related Servicer or the Master Servicer have determined, in accordance with
the
servicing procedures specified herein, as of the end of the related Prepayment
Period, that all Liquidation Proceeds that it expects to recover with respect
to
the liquidation of such Mortgage Loan or disposition of the related REO Property
have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the related
Servicing Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicers,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
related Servicer as proceeds from the liquidation of such Mortgage Loan, as
determined in accordance with the applicable provisions of the related Servicing
Agreement, other than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the related Servicing Agreement, “Liquidation Proceeds” shall also
include amounts realized in connection with such repurchase, substitution or
sale.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
18
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
lost or destroyed and has not been replaced, an affidavit from the Seller
certifying that the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying the Trust
Fund against any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note) in the form of Exhibit H hereto.
“Lower-Tier
Regular Interest”:
Any
one of the interests in the Lower-Tier REMIC, as described in the Preliminary
Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Master
Consulting Agreement”:
The
master consulting agreement dated as of April 18, 2005, by and between
Greenwich Capital Markets, Inc. and the Credit Risk Manager.
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
As to
any Distribution Date and each related Mortgage Loan, an amount equal to the
product of the applicable Master Servicing Fee Rate and the outstanding
Principal Balance of such Mortgage Loan as of the first day of the related
Due
Period.
“Master
Servicing Fee Rate”:
0.0195% per annum.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“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 registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and/or
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act
or
similar state or local law; (b) without giving effect to any extension granted
or agreed to by the related Servicer pursuant to the applicable provisions
of
the related Servicing Agreement; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or first
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
19
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of November 1, 2006, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s right and interest in the agreements listed on Exhibit M
hereto) to or at the direction of the Depositor.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to each
Mortgage Loan:
|
(i)
|
the
Mortgage Loan identifying number;
|
| (ii) |
the
state and five-digit ZIP code of the Mortgaged
Property;
|
|
(iii)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
|
(iv)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit, (d)
a two-
to four-unit residential property, (e) a townhouse, (f) a cooperative,
or
(g) other type of Residential
Dwelling;
|
|
(v)
|
if
the related Mortgage Note permits the borrower to make Monthly Payments
of
interest only for a specified period of time, (a) the original number
of
such specified Monthly Payments and (b) the remaining number of such
Monthly Payments as of the Cut-Off
Date;
|
20
|
(vi)
|
the
original months to maturity;
|
|
(vii)
|
the
stated remaining months to maturity from the Cut-Off Date based on
the
original amortization schedule;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
the
Loan Rate in effect immediately following the Cut-Off
Date;
|
|
(x)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xi)
|
the
stated maturity date;
|
|
(xii)
|
the
Master Servicing Fee Rate and the Servicing Fee
Rate;
|
|
(xiii)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xiv)
|
the
original principal balance of the Mortgage
Loan;
|
|
(xv)
|
the
Stated Principal Balance of the Mortgage Loan on the Cut-Off Date
and a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
|
(xvi)
|
the
Index and Gross Margin specified in related Mortgage
Note;
|
|
(xvii)
|
the
next Adjustment Date, if
applicable;
|
|
(xviii)
|
the
Maximum Loan Rate, if applicable;
|
|
(xix)
|
the
Value of the Mortgaged Property;
|
|
(xx)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xxi)
|
the
product code; and
|
|
(xxii)
|
the
Servicer that is servicing such Mortgage Loan and the Originator
of such
Mortgage Loan.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee (or Master
Servicer) shall not disclose such information except to the extent disclosure
may be required by any law or regulatory or administrative authority;
provided,
however,
that
the Trustee may disclose on a confidential basis any such information to its
agents, attorneys and any auditors in connection with the performance of its
responsibilities hereunder.
21
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate as
of
the Cut-Off Date: (1) the number of Mortgage Loans; (2) the current
Principal Balance of the Mortgage Loans; (3) the weighted average Loan Rate
of the Mortgage Loans; and (4) the weighted average remaining months to
maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from
time to time by the Seller in accordance with the provisions of this
Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfall, if
any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicers under the related Servicing Agreements with respect to such
Distribution Date and (ii) Compensating Interest Payments made with respect
to
such Distribution Date.
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, related Servicing Advances, the Master Servicing Fee, the related
Servicing Fees and any other accrued and unpaid servicing fees received and
retained in connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Loan
Rate for such Mortgage Loan minus
the
Expense Fee Rate and, commencing on the Distribution Date in December 2026
and
on each Distribution Date thereafter until the Final Maturity Reserve
Termination Date, the Final Maturity Reserve Rate.
“Net
Realized Losses”:
For
any Class of Certificates and any Distribution Date, the excess of (i) the
amount of Realized Losses previously allocated to that Class (ii) the sum of
(a)
the amount of any increases to the Class Principal Balance of that Class
pursuant to Section 5.08 due to Recoveries and (b) with respect to the LIBOR
Certificates, any payments received pursuant to Sections 5.01(a)(ii) and (iv)
from the Yield Maintenance Account.
“Net
WAC”:
With
respect to the Mortgage Loans and any Distribution Date, the weighted average
of
the Net Loan Rates of the Mortgage Loans as of the first day of the related
Due
Period (or, in the case of the first Distribution Date, as of the Cut-Off Date),
weighted on the basis of their related Stated Principal Balances as of the
first
day of the related Due Period (or, in the case of the first Distribution Date,
as of the Cut-Off Date).
22
“Net
WAC Cap”:
With
respect to the LIBOR Certificates and any Distribution Date, the product of
(x)
the Net WAC for such Distribution Date and (y) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Accrual Period.
“Nonrecoverable”:
A
determination by the Master Servicer or the related Servicer in respect of
a
delinquent Mortgage Loan that if it were to make an Advance or an advance of
a
delinquent Monthly Payment, respectively, in respect thereof, such amount would
not be recoverable from any collections or other recoveries (including
Liquidation Proceeds) on such Mortgage Loan.
“Notional
Certificate”:
Any
Class X Certificate.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“One-Month
LIBOR”:
The
average of interbank offered rates for one month U.S. dollar deposits in the
London market based on quotations of major banks.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee or the Securities
Administrator, as applicable, except that any opinion of counsel relating to
(a)
the qualification of any REMIC created hereunder as a REMIC or (b) compliance
with the REMIC Provisions must be an opinion of Independent
counsel.
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
|
Class
B-1
|
5.50%
|
|
Class
B-2
|
3.30%
|
|
Class
B-3
|
2.20%
|
|
Class
B-4
|
1.45%
|
|
Class
B-5
|
0.80%
|
|
Class
B-6
|
0.35%
|
“Original
Class Certificate Notional Balance”:
With
respect to the Class X Certificates, the corresponding aggregate notional amount
set forth opposite the Class designation of such Class in the Preliminary
Statement.
23
“Original
Class Principal Balance”:
With
respect to each Class of Certificates, other than the Notional Certificates,
the
corresponding aggregate amount set forth opposite the Class designation of
such
Class in the Preliminary Statement.
“Original
Subordinated Principal Balance”:
The
aggregate of the Original Class Principal Balances of the Classes of Subordinate
Certificates.
“Originator”:
Each
party listed as an “Originator” on Exhibit P hereto or any other originator
contemplated by Item 1110 (§229.1110) of Regulation AB.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates and any Distribution Date, the rate set
forth below:
(i) The
Pass-Through Rate for the Class A Certificates with respect to any Distribution
Date shall equal the lesser of (i) One-Month LIBOR plus 0.1800% per annum
(0.3600% per annum after the Call Option Date), (ii) the Net WAC Cap for
that Distribution Date and (iii) 10.50% per annum.
(ii) The
Pass-Through Rate for the Class X Certificates with respect to any Distribution
Date shall equal the excess, if any, of (1) the Net WAC Cap of the Mortgage
Loans minus (2)
a
rate equal to the product of (a) the interest accrued on the Class
A,
Class B-1, Class B-2 and Class B-3 Certificates
during the related Accrual Period multiplied by (b) 12, divided by the aggregate
Class Principal Balance of the Class
A,
Class B-1, Class B-2 and Class B-3 Certificates
immediately prior to the applicable Distribution Date.
(iii) The
Pass-Through Rate for the Class A-R Certificates with respect to any
Distribution Date shall equal the Net WAC of the Mortgage Loans for that
Distribution Date.
(iv) The
Pass-Through Rate for the Class B-1 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 0.3500%
per
annum (0.5250% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
24
(v) The
Pass-Through Rate for the Class B-2 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 0.5000%
per
annum (0.7500% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
(vi) The
Pass-Through Rate for the Class B-3 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 1.5000%
per
annum (2.2500% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
(vii) The
Pass-Through Rate for the Class B-4, Class B-5 and Class B-6 Certificates with
respect to any Distribution Date shall equal the Net WAC of the Mortgage Loans
for that Distribution Date.
“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof. The initial Paying
Agent
shall the Securities Administrator.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate other than the Class A-R or Class P Certificate,
a fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of which is
the
Original Class Certificate Principal Balance or Original Class Certificate
Notional Balance, as applicable, of the related Class. With respect to the
Class
P Certificates, the percentage interest specified on the face thereof. With
respect to the Class A-R Certificate, 100%.
“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 Trustee, the Master Servicer or any of their respective
Affiliates or for which an Affiliate of the Trustee 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)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee, the Master Servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, so long as, at the time of
such
investment or contractual commitment providing for such investment, 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
each
of
the Rating Agencies
and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
25
(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 each of the Rating Agencies;
(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 each 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 each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) any
mutual fund, money market fund, common trust fund or other pooled investment
vehicle, including any such fund that is managed by the Securities Administrator
or any affiliate of the Securities Administrator or for which the Securities
Administrator or any of its affiliates acts as an adviser as long as such fund
is rated in at least the second highest rating category each of the Rating
Agencies, if so rated; and the Securities Administrator may trade with itself
or
an affiliate when purchasing or selling Permitted Investments; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each 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.
“Permitted
Transferee”:
Any
Transferee of the Residual Certificate other than a Disqualified Organization
or
a non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Physical
Certificates”:
The
Class A-R and Class P Certificates.
“Pool
Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal
Balances, as of the Close of Business on the first day of the related Due
Period, of the Mortgage Loans that were Outstanding Mortgage Loans on that
day.
26
“Premium
Proceeds”:
The
amount by which the Termination Price paid in connection with the termination
pursuant to Section 10.01 hereof exceeds the sum of (i) accrued and unpaid
interest and unpaid principal on the Certificates and any Basis Risk Shortfalls
remaining unpaid, (ii) any unreimbursed Advances and Servicing Advances and
any unpaid Servicing Fees and (iii) all amounts, if any, then due and owing
to the Master Servicer, the Securities Administrator, Trustee, the Custodian
and
the Credit Risk Manager under this Agreement.
“Prepayment
Period”:
With
respect to any Distribution Date the calendar month preceding the month in
which
such Distribution Date occurs.
“Prepayment
Premium Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a result
of full or partial Principal Prepayments collected by the applicable Servicer
during the immediately preceding Prepayment Period and deposited into the
Distribution Account for distribution to the Holders of the Class P
Certificates.
“Primary
Insurance Policy”:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
“Principal
Balance”:
With
respect to any Mortgage Loan, other than a Liquidated Mortgage Loan, and any
day, the related Cut-Off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan after
the Cut-Off Date. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have a Principal Balance equal to the Principal Balance
of
the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. With respect to any REO
Property and any day, the Principal Balance of the related Mortgage Loan
immediately prior to such Mortgage Loan becoming REO Property.
“Principal
Distribution Amount”:
With
respect to any Distribution Date, the sum of (a) each scheduled payment of
principal collected or advanced on the related Mortgage Loans (before taking
into account any Deficient Valuation or Debt Service Reductions) by the related
Servicer or the Master Servicer in respect of the related Due Period,
(b) that portion of the Purchase Price or Repurchase Price, as applicable,
representing principal of any repurchased Mortgage Loan, deposited to the
Distribution Account during the related Prepayment Period, (c) the
principal portion of any related Substitution Adjustments deposited in the
Distribution Account during the related Prepayment Period, (d) the
principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans that are not yet Liquidated
Mortgage Loans, (e) the principal portion of all Net Liquidation Proceeds
received during the related Prepayment Period with respect to Liquidated
Mortgage Loans other than Recoveries, (f) all Principal Prepayments in part
or in full on Mortgage Loans applied by the Servicers or the Master Servicer
during the related Prepayment Period, (g) all Recoveries received during the
Prepayment Period and (h) on the Distribution Date on which the Trust is to
be
terminated pursuant to Section 10.01 hereof, that portion of the Termination
Price in respect of principal.
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
27
“Private
Certificates”:
The
Class B-4, Class B-5, Class B-6 and Class P Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated December 11, 2006 relating to the initial
sale of the Class B-4, Class B-5 and Class B-6 Certificates.
“Pro
Rata Share”:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
portion of the Subordinate Principal Distribution Amount allocable to such
Class, equal to the product of the (a) Subordinate Principal Distribution Amount
on such date and (b) a fraction, the numerator of which is the related Class
Principal Balance of that Class and the denominator of which is the aggregate
of
the Class Principal Balances of all the Classes of Subordinate
Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Prospectus Supplement, together with the accompanying prospectus dated August
10, 2006, relating to the Senior Certificates and the Class B-1, Class B-2
and
Class B-3 Certificates.
“Prospectus
Supplement”:
The
Prospectus Supplement dated December 11, 2006 relating to the offering of the
Senior Certificates and the Class B-1, Class B-2 and Class B-3
Certificates.
“Purchase
Agreement”:
Each
mortgage loan purchase agreement and/or assignment agreement relating to the
acquisition by the Seller of the Mortgage Loans and between the related
Originator and the Seller, listed on Exhibit P hereto.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03 hereof, and as confirmed by an Officers’
Certificate from the Seller to the Trustee and the Securities Administrator,
an
amount equal to the sum of (i) 100% of the Principal Balance thereof as of
the date of purchase (or such other price as is provided in Section 10.01),
plus
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Principal Balance at the applicable Loan Rate (or if the related Servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the applicable Servicing
Fee Rate) from the Due Date as to which interest was last covered by a payment
by the Mortgagor through the end of the calendar month in which the purchase
is
to be effected, and (y) an REO Property, the sum of (1) accrued
interest on such Principal Balance at the applicable Loan Rate (or if the
related Servicer is repurchasing such Mortgage Loan, the Loan Rate minus the
applicable Servicing Fee Rate) from the Due Date as to which interest was last
covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such
REO
Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus (iii) any
unreimbursed Servicing Advances and any unpaid Expense Fees allocable to such
Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and damages
incurred by the Trust Fund in connection with any violation by such Mortgage
Loan of any predatory- or abusive-lending laws.
28
“Qualified
Institutional Buyer”:
As
defined in Rule 144A of the Securities Act.
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, so long as the claims paying ability of which
is
acceptable to each Rating Agency for pass-through certificates having the same
ratings on the Certificates rated by each Rating Agency as of the Closing Date.
Any replacement insurer with respect to a Mortgage Loan must have at least
as
high a claims paying ability rating as the insurer it replaces had on the
Closing Date.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
as of the date of substitution equal to or lower than the Loan-to-Value Ratio
of
the Deleted Mortgage Loan as of such date, (ix) have been underwritten or
re-underwritten in accordance with the same or substantially similar
underwriting criteria and guidelines as the Deleted Mortgage Loan, (x) is of
the
same or better credit quality as the Deleted Mortgage Loan and (xi) conform
to each representation and warranty set forth in Section 2.04 hereof applicable
to the Deleted Mortgage Loan. In the event that one or more mortgage loans
are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (vi) hereof shall be determined on
the basis of weighted average remaining term to maturity and the Loan-to-Value
Ratio described in clause (viii) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
“Rating
Agency”:
Each
of Fitch and S&P. If any rating agency or its successor shall no longer be
in existence, “Rating Agency” shall include such nationally recognized
statistical rating agency or agencies, or other comparable Person or Persons,
as
shall have been designated by the Depositor, notice of which designation shall
be given to the Trustee and the Master Servicer.
29
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Record
Date”:
With
respect to each Distribution Date and the LIBOR Certificates, the Business
Day
preceding the applicable Distribution Date so long as such Certificates remain
Book-Entry Certificates and otherwise the Record Date shall be same as the
other
Classes of Certificates. For each other Class of Certificates, the last Business
Day of the calendar month preceding the month in which such Distribution Date
occurs.
“Recovery”:
With
respect to any Distribution Date and a Mortgage Loan that became a Liquidated
Mortgage Loan in the month preceding the month prior to that Distribution Date
and with respect to which the related Realized Loss was allocated to one or
more
Classes of Certificates, an amount received in respect of such Liquidated
Mortgage Loan during the prior calendar month, net of any reimbursable
expenses.
“Reference
Bank”:
A
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, which shall not control, be controlled by, or be under
common control with, the Securities Administrator and shall have an established
place of business in London. Until all of the LIBOR Certificates are paid in
full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each LIBOR
Determination Date. The Securities Administrator initially shall designate
the
Reference Banks (after consultation with the Depositor). If any such Reference
Bank should be unwilling or unable to act as such or if the Securities
Administrator should terminate its appointment as Reference Bank, the Securities
Administrator shall promptly appoint or cause to be appointed another Reference
Bank (after consultation with the Depositor). The Securities Administrator
shall
have no liability or responsibility to any Person for (i) the selection of
any Reference Bank for purposes of determining LIBOR or (ii) any inability
to retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Class A, Class X, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificate.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarifications and interpretations as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
30
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit Q attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Credit Risk Manager, the Custodian
or any Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
“Relief
Act”:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not cause an Adverse REMIC Event.
“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.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
31
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by the Servicers in respect of an REO Property
pursuant to the Servicing Agreements.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the Trust
Fund.
“REO
Imputed Interest”:
With
respect to any REO Property, for any calendar month during which such REO
Property was at any time part of the Trust Fund, one month’s interest at the
applicable Net Loan Rate for such REO Property on the Principal Balance of
such
REO Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Due Date in
such calendar month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the Servicing Agreements in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable
or
reimbursable to the Servicers pursuant to the applicable provisions of the
Servicing Agreements for unpaid Master Servicing Fees and Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and
Advances in respect of such REO Property or the related Mortgage Loan, over
(b) the REO Imputed Interest in respect of such REO Property for such
calendar month.
“REO
Property”:
A
Mortgaged Property acquired by the Servicers on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in accordance with the applicable
provisions of the Servicing Agreements.
“Repurchase
Price”:
As
defined in the related Purchase Agreement.
“Reportable
Event”:
As
defined in Section 3.19(c).
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Required
Reserve Fund Deposit”:
With
respect to the Class X Certificates and any Distribution Date, an amount equal
to the lesser of (i) the Current Interest for the Class X Certificates for
such
Distribution Date and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund up to an amount equal to the Basis Risk
Shortfalls for such Distribution Date with respect to the LIBOR Certificates
(after giving effect to distributions of payments made pursuant to the Yield
Maintenance Agreement).
32
“Residential
Dwelling”:
Any
one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a condominium project, (iv) a manufactured home, (v) a cooperative unit or
(vi)
a detached one-family dwelling in a planned unit development, none of which
is a
mobile home.
“Residual
Certificate”:
The
Class A-R Certificate.
“Responsible
Officer”:
When
used with respect to the Trustee or any director, the President, any vice
president, any assistant vice president, any associate assigned to the Corporate
Trust Office (or similar group) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and, with respect to a particular matter, to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Restricted
Classes”:
As
defined in Section 5.01(d).
“Restricted
Global Security”:
As
defined in Section 6.01.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“Sarbanes
Oxley Act”:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form
or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the Xxxxxxxx-Xxxxx Certification shall be as agreed to by the
Master Servicer, the Depositor and the Seller following a negotiation in good
faith to determine how to comply with any such new requirements.
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A., or its successor in interest, or any successor securities
administrator appointed as herein provided.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
33
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any
one of the Class A, Class X or Class A-R Certificates.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Principal Balance of each Class of Subordinate
Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to any Distribution Date, the percentage equivalent of a fraction (which
shall not be greater than 100%) the numerator of which is the aggregate of
the
Class Principal Balances of the Classes of Senior Certificates immediately
prior
to such Distribution Date and the denominator of which is the Pool Balance
for
that Distribution Date.
“Senior
Prepayment Percentage”:
With
respect to any Distribution Date before the Distribution Date in December 2016,
100%. Except as provided herein, the Senior Prepayment Percentage for any
Distribution Date occurring on or after the tenth anniversary of the first
Distribution Date will be as follows: (i) from December 2016 through
November 2017, the Senior Percentage plus 70% of the Subordinate Percentage
for
that Distribution Date; (ii) from December 2017 through
November 2018, the Senior Percentage plus 60% of the Subordinate Percentage
for
that Distribution Date; (iii) from December 2018 through
November 2019, the Senior Percentage plus 40% of the Subordinate Percentage
for
that Distribution Date; (iv) from December 2019 through
November 2020, the Senior Percentage plus 20% of the Subordinate Percentage
for
that Distribution Date; and (v) from and after December 2020, the Senior
Percentage for that Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage on a
Distribution Date unless the Step Down Conditions are satisfied with respect
to
such Distribution Date; and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in December
2020, the Senior Percentage exceeds the initial Senior Percentage, the Senior
Prepayment Percentage for that Distribution Date will again equal 100%.
Notwithstanding
the above, (i) if on any Distribution Date prior to December 2009 the Two Times
Test is satisfied, the Senior Prepayment Percentage will equal the Senior
Percentage for such Distribution Date plus 50% of the Subordinate Percentage
for
such Distribution Date and (ii) if
on any
Distribution Date in or after December 2009 the Two Times Test is satisfied,
the
Senior Prepayment Percentage will equal the Senior Percentage for such
Distribution Date.
“Senior
Principal Distribution Amount”:
With
respect to any Distribution Date, the sum of:
(1) the
Senior Percentage of all amounts described in clauses (a) through (d) and clause
(h) of the definition of “Principal Distribution Amount” for that Distribution
Date;
34
(2) with
respect to each Mortgage Loan which became a Liquidated Mortgage Loan during
the
related Prepayment Period, the lesser of
|
(x)
|
the
Senior Percentage of the Stated Principal Balance of that Mortgage
Loan;
and
|
|
(y)
|
the
Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds
allocable to principal received with respect to that Mortgage Loan
|
(3) the
Senior Prepayment Percentage of the amounts described in clauses (f) and (g)
of
the definition of “Principal Distribution Amount” for that Distribution
Date.
“Servicer”:
Each
of Xxxxxx, First Republic and GMAC as primary servicers of the Mortgage Loans
as
set forth and as individually defined in the Mortgage Loan Schedule hereto
and
any successors thereto.
“Servicer
Remittance Date”:
With
respect to each Mortgage Loan, the 18th
day of
each month, or if such 18th
day is
not a Business Day or if provided in the related Servicing Agreement, the
preceding Business Day.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Master Servicer or
the
Trust Fund by a Servicer or with respect to the related Mortgage Loans and
any
REO Property, pursuant to the terms of the respective Servicing
Agreement.
“Servicing
Advances”:
With
respect to the Master Servicer (including the Trustee as successor Master
Servicer) and the Servicers, all customary, reasonable and necessary “out of
pocket” costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by the Master Servicer (including the Trustee in its capacity as
successor Master Servicer) or the Servicers in the performance of its servicing
obligations hereunder, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii)
the
management and liquidation of the REO Property and (iv) any other expenses
permitted to be reimbursed as Servicing Advances under the Servicing
Agreements.
“Servicing
Agreement”:
Each
reconstituted servicing agreement set forth on Exhibit M hereto and relating
to
a Servicer and the servicing of the related Mortgage Loans by such Servicer,
as
the same may be amended from time to time.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to each Servicer and each Mortgage Loan serviced by such Servicer and
for any calendar month, the fee payable to the Servicer determined pursuant
to
the applicable Servicing Agreement.
35
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum rate of 0.375%.
“Servicing
Function Participant”:
Any
Subservicer or Subcontractor of a Servicer, the Master Servicer, the Custodian
or the Securities Administrator, respectively.
“Servicing
Officer”: Any
officer of the Master Servicer or the Servicers involved in, or responsible
for,
the administration and servicing (or master servicing) of Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished
by
the Master Servicer to the Trustee, the Custodian and the Depositor on the
Closing Date, as such list may from time to time be amended.
“Six-Month
LIBOR”:
The
average of interbank offered rates for six-month U.S. dollar deposits in the
London market based on quotations of major banks.
“Six-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the Six-Month LIBOR index.
“Sponsor”:
Greenwich Capital Financial Products, Inc., in its capacity as sponsor under
this Agreement.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in December 2006,
the Cut-Off Date Principal Balance of such Mortgage Loan, (b) thereafter
as of any date of determination up to and including the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan would be distributed, the Cut-Off Date Principal Balance of such Mortgage
Loan minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date, whether or
not
received, (ii) all Principal Prepayments received after the Cut-Off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the Servicers as recoveries of principal in accordance with the
applicable provisions of the Servicing Agreement, to the extent distributed
pursuant to Section 5.01 before such date of determination; and (c) as of
any date of determination subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (x) as of any
date of determination up to and including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of the Trust Fund, minus the aggregate amount of REO
Principal Amortization in respect of such REO Property for all previously ended
calendar months, to the extent distributed pursuant to Section 5.01 before
such date of determination; and (y) as of any date of determination
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
36
“Step
Down Conditions”:
With
respect to any Distribution Date on which any decrease in any Senior Prepayment
Percentage may apply, (i) the outstanding Principal Balance of all Mortgage
Loans 60 days or more Delinquent (including related Mortgage Loans in REO and
foreclosure) (averaged over the preceding six month period), as a percentage
of
the aggregate of the Class Principal Balances of the Classes of Subordinate
Certificates on such Distribution Date, does not equal or exceed 50% and
(ii) cumulative Realized Losses with respect to all of the Mortgage Loans
do not exceed:
|
·
|
for
any Distribution Date on or after the seventh anniversary until the
eighth
anniversary of the first Distribution Date, 30% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the eighth anniversary until the
ninth
anniversary of the first Distribution Date, 35% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the ninth anniversary until the
tenth
anniversary of the first Distribution Date, 40% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the tenth anniversary until the
eleventh
anniversary of the first Distribution Date, 45% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date, and
|
|
·
|
for
any Distribution Date on or after the eleventh anniversary of the
first
Distribution Date, 50% of the aggregate Certificate Principal Balance
of
the Subordinate Certificates as of the Closing
Date.
|
“Strike
Rate”:
With
respect to any Distribution Date and the Yield Maintenance Agreement, the strike
rate for such date set forth on Exhibit I of the Yield Maintenance
Agreement.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Subservicer of any Servicer),
the Master Servicer, the Custodian, the Credit Risk Manager, the Trustee or
the
Securities Administrator.
“Subordinate
Certificate”:
Any
one of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class B-6
Certificates.
“Subordinate
Percentage”:
With
respect to any Distribution Date, the difference between 100% and the Senior
Percentage for such Distribution Date.
“Subordinate
Prepayment Percentage”:
With
respect to any Distribution Date, the difference between 100% and the Senior
Prepayment Percentage for that Distribution Date.
37
“Subordinate
Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the sum of:
(1)
the
Subordinate Percentage of all amounts described in clauses (a) through (d)
and
clause (h) of the definition of “Principal Distribution Amount” for that
Distribution Date;
(2) with
respect to each Mortgage Loan that became a Liquidated Mortgage Loan during
the
related Prepayment Period, the amount of the Net Liquidation Proceeds allocated
to principal received with respect thereto remaining after application thereof
pursuant to clause (2) of the definition of “Senior Principal Distribution
Amount” for such Distribution Date, up to the Subordinate Percentage of the
Stated Principal Balance of such Mortgage Loan; and
(3) the
Subordinated Prepayment Percentage of all amounts described in clause (f) of
the
definition of “Principal Distribution Amount” for that Distribution
Date;
“Subservicer”:
Any
person that services Mortgage Loans on behalf of a Servicer, the Master
Servicer, the Securities Administrator or the Custodian, and is responsible
for
the performance (whether directly or through sub-servicers or Subcontractors)
of
servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
“Substitution
Adjustment”:
As
defined in Section 2.03(f) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
each of the REMICs created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions
of
federal, state or local tax laws.
“Telerate
Page 3750”:
The
display currently so designated as “Page 3750” on the Bridge Telerate Service
(or such other page selected by the Securities Administrator as may replace
Page
3750 on that service for the purpose of displaying daily comparable rates on
prices).
“10-K
Filing Deadline”:
As
defined in Section 3.19(b).
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Terminator”:
As
defined in Section 10.01(a) hereof.
“Transaction
Xxxxxxxx Xxxxxxxxxx 0000-00”:
The
transaction addendum dated as of December 13, 2006, by and between Greenwich
Capital Markets, Inc. and the Credit Risk Manager, and acknowledged by the
Trustee, relating to the transaction contemplated by this
Agreement.
38
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in the Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust”:
HarborView Mortgage Loan Trust 2006-13, the trust created
hereunder.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, such Trust Fund consisting of:
(i) such Mortgage Loans as from time to time are subject to this Agreement,
together with the Mortgage Files relating thereto, and together with all
collections thereon and proceeds thereof, (ii) any REO Property, together
with all collections thereon and proceeds thereof, (iii) the Trustee’s
rights with respect to the Mortgage Loans under all insurance policies required
to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the Depositor’s rights under the Mortgage Loan Purchase Agreement
(including any security interest created thereby); (v) the Distribution
Account (subject to the last sentence of this definition), any REO Account
and
such assets that are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments with respect
thereto; (vi) all right, title and interest of the Seller in and to each of
the Servicing Agreements; (vii) the Basis Risk Reserve Fund, the Final Maturity
Reserve Fund, the Yield Maintenance Account and the Collateral Account; (viii)
the rights of the Trust Fund under the Yield Maintenance Agreements; and (ix)
all proceeds of the foregoing. Notwithstanding the foregoing, however, the
Trust
Fund specifically excludes (1) all payments and other collections of
interest and principal due on the Mortgage Loans on or before the Cut-Off Date
and principal received before the Cut-Off Date (except any principal collected
as part of a payment due after the Cut-Off Date) and (2) all income and
gain realized from Permitted Investments of funds on deposit in the Distribution
Account.
“Trustee”:
Deutsche Bank National Trust Company, not in its individual capacity but solely
as trustee, a national banking association, its successors or assigns, or any
successor trustee appointed as herein provided.
“Trustee
Fee”:
The
annual on-going fee as agreed to by and payable by the Master Servicer on behalf
of the Trust Fund to the Trustee from the Master Servicer Fee or other funds
of
the Master Servicer.
“Two
Times Test”:
As to
any Distribution Date, (i) the Aggregate Subordinate Percentage is at least
two
times the Aggregate Subordinate Percentage as of the Closing Date; (ii) the
aggregate of the Principal Balances of all Mortgage Loans Delinquent 60 days
or
more (including Mortgage Loans in REO and foreclosure) (averaged over the
preceding six-month period), as a percentage of the aggregate of the Class
Principal Balances of the Subordinate Certificates, does not equal or exceed
50%; and (iii) on or after the Distribution Date in December 2009, cumulative
Realized Losses do not exceed 30% of the Original Subordinated Principal Balance
or prior to the Distribution Date in December 2009, cumulative Realized Losses
do not exceed 20% of the Original Subordinated Principal Balance.
39
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by PTE 97-34 (Exemption Application No. D-10245 and D-10246) and by
PTE
2000-58 (Exemption Application No. D-10829) and PTE 2002-41 (Exemption
Application No. D-11077), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
“United
States Person”
or
“U.S.
Person”:
The
term shall have the meaning set forth in Section 7701(a)(30) of the Code or
successor provisions.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac; and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 98% of the voting rights shall be allocated among the Classes
of Regular Certificates (other than the Class A-R, Class P and Class X
Certificates), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding; 1% of the voting rights shall
be
allocated to the Holders of the Class X Certificates and 1% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance, as applicable, of each Certificate of such Class
and the denominator of which is the Class Principal Balance or Class Notional
Balance, as applicable, of such Class; provided,
further,
that
any Certificate registered in the name of the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates shall not
be
included in the calculation of Voting Rights. The Class P Certificates shall
have no voting rights.
40
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“Yield
Maintenance Account”:
The
account established and maintained by the Securities Administrator pursuant
to
Section 4.04, which shall be entitled “Yield Maintenance Account, Xxxxx Fargo
Bank, N.A., as Securities Administrator for Deutsche Bank National Trust
Company, as Trustee, in trust for the registered Holders of HarborView Mortgage
Loan Trust, Mortgage Loan Pass-Through Certificates, Series 2006-13” and which
must be an Eligible Account.
“Yield
Maintenance Agreement”:
The
interest rate cap agreement by and between the Yield Maintenance Provider and
the Securities Administrator, on behalf of the Trust Fund, including the ISDA
Master Agreement between the Yield Maintenance Provider and the Securities
Administrator, the schedule thereto and the related confirmation (Ref. No.
FXHMLT613A), dated as of December 13, 2006, a copy of which is attached as
Exhibit X hereto.
“Yield
Maintenance Distributable Amount”:
With
respect to each Distribution Date and the LIBOR Certificates, an amount equal
to
the product of (i) the excess, if any, of (x) LIBOR, subject to the applicable
strike rate cap set forth on Schedule I to the Yield Maintenance Agreement
over
(y) the applicable Strike Rate, (ii) the related Yield Maintenance Notional
Balance and (iii) a fraction, the numerator of which is the actual number days
in the related interest Accrual Period and the denominator of which is
360.
“Yield
Maintenance Notional Balance”:
For
any Distribution Date, the lesser of (i) the amount set forth on Schedule I
to
the Yield Maintenance Agreement and (ii) the aggregate Class Principal Balance
of the LIBOR Certificates.
“Yield
Maintenance Payments”:
The
payment remitted to the Securities Administrator by the Yield Maintenance
Provider under any Yield Maintenance Agreement.
“Yield
Maintenance Provider”:
Bear
Xxxxxxx Financial Products Inc., its successors and assigns or any successor
Yield Maintenance Provider.
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
41
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan
Schedule, including the related Cut-Off Date Principal Balance, all interest
due
thereon after the Cut-Off Date and all collections in respect of interest and
principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and
interest in and to the Distribution Account and all amounts from time to time
credited to and the proceeds of the Distribution Account; (iii) any real
property that secured each such Mortgage Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any
insurance policies in respect of the Mortgage Loans; (v) all proceeds of any
of
the foregoing; and (vi) all other assets included or to be included in the
Trust
Fund. Such assignment includes all interest and principal due to the Depositor
or the Master Servicer after the Cut-Off Date with respect to the Mortgage
Loans. In exchange for such transfer and assignment, the Depositor shall receive
the Certificates.
On
or
prior to the Closing Date, the Depositor shall cause the Yield Maintenance
Provider to enter into the Yield Maintenance Agreement with the Securities
Administrator. The Depositor hereby directs the Securities Administrator to
execute, not in its individual capacity, but solely as Securities Administrator
on behalf of the Trust Fund, and deliver the Yield Maintenance Agreements.
It
is
agreed and understood by the Depositor, the Seller and the Trustee that it
is
not intended that any Mortgage Loan be included in the Trust Fund that is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective
as of November 27, 2003, or The Home Loan Protection Act of New Mexico,
effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act, effective as
of
November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as
defined in the Indiana High Cost Home Loan Act, effective as of January 1,
2005.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreements to the extent assigned in the Mortgage Loan Purchase Agreement.
The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Purchase Agreement and all
rights of the Seller under each Servicing Agreement as if, for such purpose,
it
were the Depositor or the Seller, as applicable, including the Seller’s right to
enforce remedies for breaches of representations and warranties and delivery
of
the Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
42
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the Custodian as
its
designated agent, the following documents or instruments with respect to each
Mortgage Loan (a “Mortgage
File”)
so
transferred and assigned:
|
(i)
|
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of Deutsche
Bank National Trust Company, as Trustee for HarborView Mortgage Loan
Trust
Mortgage Loan Pass-Through Certificates, Series 2006-13, without
recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost,
misplaced
or destroyed, together with a copy of the related mortgage note;
provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off
Date Principal Balance of which is less than or equal to 2% of the
Cut-Off
Date Aggregate Principal Balance;
|
|
(ii)
|
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, and in the case of each MERS Mortgage
Loan,
the original Mortgage, noting the presence of the MIN for that Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan
if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was
not a MOM
Loan at origination, the original Mortgage and the assignment to
MERS, in
each case with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage
or power
of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not
otherwise available, a certified copy of such Mortgage or power of
attorney, as the case may be, and that the original of such Mortgage
has
been forwarded to the public recording office, or, in the case of
a
Mortgage that has been lost, a copy thereof (certified as provided
for
under the laws of the appropriate jurisdiction) and a written Opinion
of
Counsel (delivered at the Seller’s expense) acceptable to the Trustee and
the Depositor that an original recorded Mortgage is not required
to
enforce the Trustee’s interest in the Mortgage
Loan;
|
|
(iii)
|
the
original or copy of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused
by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of
such assumption, modification or substitution agreement, pending
delivery
of the original thereof, together with an Officer’s Certificate of the
Seller certifying that the copy of such assumption, modification
or
substitution agreement delivered to the Trustee (or its custodian)
on
behalf of the Trust Fund is a true copy and that the original of
such
agreement has been forwarded to the public recording
office;
|
43
|
(iv)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment, in form and substance acceptable for recording.
The
Mortgage shall be assigned to “Deutsche Bank National Trust Company, as
Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates, Series 2006-13, without
recourse;”
|
|
(v)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening Assignment showing a complete chain
of
assignments, or, in the case of an intervening Assignment that has
been
lost, a written Opinion of Counsel (delivered at the Seller’s expense)
acceptable to the Trustee that such original intervening Assignment
is not
required to enforce the Trustee’s interest in the Mortgage
Loans;
|
|
(vi)
|
the
original Primary Insurance Policy, if any, or certificate, if
any;
|
|
(vii)
|
the
original or a certified copy of lender’s title insurance policy;
and
|
|
(viii)
|
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
|
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the applicable Servicer to take), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), such actions as are necessary to cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by
including (or deleting, in the case of Mortgage Loans that are repurchased
in
accordance with this Agreement) in such computer files the information required
by the MERS® System to identify the series of the Certificates issued in
connection with the transfer of such Mortgage Loans to the HarborView Mortgage
Loan Trust 2006-13. Notwithstanding anything herein to the contrary, the Master
Servicer and Securities Administrator are not responsible for monitoring any
MERS Mortgage Loans.
With
respect to each Cooperative Loan the Seller, on behalf of the Depositor does
hereby deliver to the Trustee (or the Custodian) the related Cooperative Loan
Documents and the Seller shall take (or cause the applicable Servicer to take),
at the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary under applicable law
(including but not limited to the relevant UCC) in order to perfect the interest
of the Trustee in the related Mortgaged Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust Fund or the
Trustee) acceptable to the Trustee, each Rating Agency, recording in such states
is not required to protect the Trust Fund’s interest in the related Mortgage
Loans; provided,
further,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the applicable Servicer to submit each such assignment for recording),
at
the cost and expense of the Seller, in the manner described above, at no expense
to the Trust Fund or Trustee, upon the earliest to occur of (1) reasonable
direction by the Majority Certificateholders, (2) the occurrence of a bankruptcy
or insolvency relating to the Seller or the Depositor, or (3) with respect
to
any one Assignment of Mortgage, the occurrence of a bankruptcy, insolvency
or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the applicable Servicer to properly record), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), in each public recording office where the related Mortgages are
recorded, each assignment referred to in Section 2.01(v) above with respect
to a
Mortgage Loan that is not a MERS Mortgage Loan.
44
The
Trustee (or the Custodian on its behalf) agrees to execute and deliver to the
Depositor on or prior to the Closing Date an acknowledgment of receipt of the
original Mortgage Note (with any exceptions noted), substantially in the form
attached as Exhibit G-1 hereto.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(vii) above, the Seller shall deliver or
cause
to be delivered to the Trustee the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee (or the Custodian on its behalf), promptly upon receipt thereof,
but
in any case within 175 days of the Closing Date. The Seller shall deliver or
cause to be delivered to the Trustee (or the Custodian on its behalf), promptly
upon receipt thereof, any other documents constituting a part of a Mortgage
File
received with respect to any Mortgage Loan sold to the Depositor by the Seller,
including, but not limited to, any original documents evidencing an assumption
or modification of any Mortgage Loan.
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, in lieu of the Seller delivering the above
documents, the applicable Servicer shall deliver to the Trustee, or to the
Custodian on behalf of the Trustee, prior to the first Distribution Date, an
Officer’s Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the Distribution Account have been so deposited. All original
documents that are not delivered to the Trustee on behalf of the Trust Fund
shall be held by the Master Servicer or the applicable Servicer in trust for
the
Trustee, for the benefit of the Trust Fund and the
Certificateholders.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
45
SECTION
2.02. Acceptance
by Trustee.
The
Trustee hereby accepts its appointment as Custodian hereunder and acknowledges
the receipt, subject to the provisions of Section 2.01 and subject to the review
described below and any exceptions noted on the exception report described
in
the next paragraph below, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that,
in its capacity as Custodian, it holds and will hold such documents and the
other documents delivered to it constituting a Mortgage File, and that it holds
or will hold all such assets and such other assets included in the definition
of
“Trust Fund” in trust for the exclusive use and benefit of all present and
future Certificateholders.
The
Trustee (or the Custodian on its behalf) shall, for the benefit of the
Certificateholders, review each Mortgage File delivered to it and to certify
and
deliver to the Depositor, the Seller and each Rating Agency an interim
certification in substantially the form attached hereto as Exhibit G-2, within
90 days after the Closing Date (or, with respect to any document delivered
after
the Startup Day, within 45 days of receipt and with respect to any Qualified
Substitute Mortgage, within five Business Days after the assignment thereof)
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in
the exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered and reviewed by
it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (iii) of the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, the Trustee
(or
the Custodian on its behalf) is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
No
later
than 180 days after the Closing Date, the Trustee shall deliver to the Depositor
and the Seller a final certification in the form annexed hereto as Exhibit
G-3
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If,
in
the process of reviewing the Mortgage Files and making or preparing, as the
case
may be, the certifications referred to above, the Trustee finds any document
or
documents constituting a part of a Mortgage File to be missing or not conforming
to the requirements set forth herein, at the conclusion of its review the
Trustee (or the Custodian on its behalf) shall promptly notify the Seller and
the Depositor. In addition, upon the discovery by the Seller or the Depositor
(or upon receipt by the Trustee of written notification of such breach) of
a
breach of any of the representations and warranties made by the Seller in the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan that materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties to this
Agreement.
46
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee and that such property
not be part of the Depositor’s estate or property of the Depositor in the event
of any insolvency by the Depositor. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the parties intend that the
Depositor shall be deemed to have granted and does hereby grant to the Trustee
a
first priority perfected security interest in all of the Depositor’s right,
title and interest in and to the Mortgage Loans, the related Mortgage Notes
and
the related documents, and that this Agreement shall constitute a security
agreement under applicable law.
The
Trustee is hereby authorized and directed by the Depositor to execute and
deliver Transaction Xxxxxxxx Xxxxxxxxxx 0000-00 to the Master Consulting
Agreement with the Credit Risk Manager.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
(a) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
related Originator of any representation, warranty or covenant under the related
Purchase Agreement in respect of any Mortgage Loan which materially adversely
affects the value of that Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify such Originator of such
defect, missing document or breach and request that such Originator deliver
such
missing document or cure such defect or breach within 90 days from the date
that
the Seller was notified of such missing document, defect or breach, and if
such
Originator does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce such
Originator’s obligation under the related Purchase Agreement and cause such
Originator to repurchase that Mortgage Loan from the Trust Fund at the
Repurchase Price (as defined in the related Purchase Agreement) on or prior
to
the Determination Date following the expiration of such 90 day period. It is
understood and agreed that the obligation of the related Originator to cure
or
to repurchase or to substitute for (or, with respect to any costs and damages
incurred by the Trust Fund in connection with any violation of any
anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage Loan
as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against such Originator respecting such omission,
defect or breach available to the Trustee on behalf of the
Certificateholders.
(b) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Seller of any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement or in Section 2.04 or Section 2.08 hereof in respect of
any Mortgage Loan which materially adversely affects the value of that Mortgage
Loan or the interest therein of the Certificateholders, the Trustee shall
promptly notify the Seller of such noncompliance, missing document or breach
and
request that the Seller deliver such missing document or cure such noncompliance
or breach within 90 days from the date that the Seller was notified of such
missing document, noncompliance or breach, and if the Seller does not deliver
such missing document or cure such noncompliance or breach in all material
respects during such period, the Trustee shall enforce the Seller’s obligation
under the Mortgage Loan Purchase Agreement and cause the Seller to repurchase
that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to
the
Determination Date following the expiration of such 90 day period (subject
to
Section 2.03(e) below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Section 2.04 hereof, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans for the Purchase Price or, if
the
Mortgage Loan or the related Mortgaged Property acquired with respect thereto
has been sold, then the Seller shall pay, in lieu of the Purchase Price, any
excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale.
47
(c) The
Purchase Price or Repurchase Price (as defined in the related Purchase
Agreement) for a Mortgage Loan purchased or repurchased under this Section
2.03
or such other amount due shall be deposited in the Distribution Account on
or
prior to the next Determination Date after the Seller’s or the related
Originator’s obligation to repurchase such Mortgage Loan arises. The Trustee (or
the Custodian on its behalf), upon receipt of written certification from the
Seller or related Originator of the related deposit in the Distribution Account,
shall release to the Seller or the related Originator, as applicable, the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Seller or the related
Originator, as applicable, shall furnish to it and as shall be necessary to
vest
in the Seller or the related Originator, as applicable, any Mortgage Loan
released pursuant hereto and the Trustee (or the Custodian on its behalf) shall
have no further responsibility with regard to such Mortgage File (it being
understood that the Trustee (or the Custodian on its behalf) shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). In lieu of repurchasing any such Mortgage Loan as provided
above, the Seller may cause such Mortgage Loan to be removed from the Trust
Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one
or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d) below. It is understood and agreed
that
the obligation of the Seller to cure or to repurchase or to substitute for
(or,
with respect to any costs and damages incurred by the Trust Fund in connection
with any violation of any anti-predatory or anti-abusive lending laws, indemnify
for) any Mortgage Loan as to which a document is missing, a material defect
in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
(d) Notwithstanding
anything to the contrary set forth above, with respect to any breach by the
Seller of a representation or warranty made by the Seller herein or in the
Mortgage Loan Purchase Agreement that materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans or the interest therein of the
Certificateholders, if the Seller would not be in breach of such representation
or warranty but for a breach by the related Originator of a representation
and
warranty made by such Originator in the related Purchase Agreement, then related
the Originator thereunder, in the manner and to the extent set forth therein,
and not the Seller, shall be required to remedy such breach. In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Trust Fund and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in Section
2.04.
48
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of missing or defective documentation
or
on account of a breach of a representation, warranty or covenant as described
in
this Section 2.03(c).
(e) If
pursuant to the provisions of Section 2.03(b), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall take (or shall cause the applicable Servicer to take),
at
the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary either (i) cause MERS
to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
(f) [Reserved].
(g) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Loans, such substitution shall be effected by the Seller delivering
to
the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note, the Mortgage, the Assignment to the Trustee, and such other documents
and
agreements, with all necessary endorsements thereon, as are required by Section
2.01 hereof, together with an Officers’ Certificate stating that each such
Qualified Substitute Mortgage Loan satisfies the definition thereof and
specifying the Substitution Adjustment (as described below), if any, in
connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Trustee (or the Custodian on its behalf), shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and, within five
Business Days thereafter, shall review such documents as specified in Section
2.02 hereof and deliver to the related Servicer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in the form
attached hereto as Exhibit G-2, with any exceptions noted thereon. Within 180
days of the date of substitution, the Trustee (or the Custodian on its behalf),
shall deliver to the Seller and the Master Servicer a certification
substantially in the form of Exhibit G-3 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any exceptions noted thereon. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to Certificateholders will reflect
the collections and recoveries in respect of such Deleted Mortgage Loan in
the
Due Period preceding the month of substitution and the Depositor or the Seller,
as the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall
give or cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the
Custodian, the Master Servicer and the Securities Administrator. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
part of the Trust Fund and shall be subject in all respects to the terms of
this
Agreement and, in the case of a substitution effected by the Seller, the
Mortgage Loan Purchase Agreement, including, in the case of a substitution
effected by the Seller all representations and warranties thereof included
in
the Mortgage Loan Purchase Agreement and all representations and warranties
thereof set forth in Section 2.04 hereof, in each case as of the date of
substitution.
49
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to the amount
(each, a “Substitution Adjustment”), if any, by which the aggregate Purchase
Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each
such
Qualified Substitute Mortgage Loan, of the principal balance thereof as of
the
date of substitution, together with one month’s interest on such principal
balance at the applicable Net Loan Rate. On or prior to the next Determination
Date after the Seller’s obligation to repurchase the related Deleted Mortgage
Loan arises, the Seller will deliver or cause to be delivered to the Securities
Administrator for deposit in the Distribution Account an amount equal to the
related Substitution Adjustment, if any, and the Custodian, on behalf of the
Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or
Loans, and a written certification from the Seller of its remittance of the
deposit to the Distribution Account, shall release to the Seller the related
Mortgage File or Files and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Seller shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC Event. If such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(h) Upon
discovery by the Seller, the Master Servicer, the Depositor or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the limitations
set forth in Section 2.03(e), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier
of
discovery or receipt of such notice with respect to such affected Mortgage
Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(b) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
50
(i) Notwithstanding
the foregoing, to the extent that any fact, condition or event with respect
to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty
of
the applicable Originator under the applicable Purchase Agreement and (ii)
a
representation or warranty of the Seller under this Agreement, in each case,
which materially adversely affects the value of such Mortgage Loan or the
interest therein of the Certificateholders, the Trustee shall first request
that
the Originator cure such breach or repurchase such Mortgage Loan and if the
Originator fails to cure such breach or repurchase such Mortgage Loan within
60
days of receipt of such request from the Trustee, the Trustee shall then request
that the Seller cure such breach or repurchase such Mortgage Loans.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans.
The
Seller hereby makes the following representations and warranties to the Trustee
on behalf of the Certificateholders as of the Closing Date with respect to
the
Mortgage Loans:
(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans at
origination have been complied with;
(ii) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an annual
percentage rate (“APR”) or total points and fees that are equal to or exceeds
the HOEPA thresholds (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b)
a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for assignee liability to holders of such mortgage loans,
or (d) a High Cost Loan or Covered Loan, as applicable (as such terms are
defined in the then current Standard & Poor’s LEVELS® Glossary Revised,
Appendix E). In addition, no Mortgage Loan originated on or after October 1,
2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
and
(iii) With
respect to each representation and warranty with respect to any Mortgage Loan
made by the Originator in the Purchase Agreement that is made as of the related
Closing Date (as defined in the related Purchase Agreement), to the Seller’s
knowledge, no event has occurred since the related Closing Date (as defined
in
the related Purchase Agreement) that would render such representations and
warranties to be untrue in any material respect as of the Closing
Date.
51
With
respect to the representations and warranties incorporated in this Section
2.04
that are made to the best of the Seller’s knowledge or as to which the Seller
has no knowledge, if it is discovered by the Depositor, the Seller, the Master
Servicer or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interest therein of the Certificateholders
then, notwithstanding the Seller’s lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time
the
representation or warranty was made, such inaccuracy shall be deemed a breach
of
the applicable representation or warranty.
It
is
understood and agreed that the representations and warranties incorporated
in
this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the
Depositor, the Seller, the Master Servicer or the Trustee of a breach of any
of
the foregoing representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties, and in no event later than two Business Days from
the date of such discovery. It is understood and agreed that the obligations
of
the Seller set forth in Section 2.03(b) hereof to cure, substitute for or
repurchase (or, with respect to any costs and damages incurred by the trust
fund
in connection with any violation of any anti-predatory or anti-abusive lending
laws, indemnify for) a related Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of
the
representations and warranties incorporated in this Section 2.04.
SECTION
2.05. [Reserved].
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust Fund and the Trustee on behalf
of
the Certificateholders and to as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust Fund of each Mortgage Loan, the Depositor had good and marketable
title to each Mortgage Loan (insofar as such title was conveyed to it by the
Seller) subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of
any
nature;
52
(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust Fund;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust Fund with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
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SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02 hereof, together with the assignment to it of all other assets included
in
the Trust Fund, receipt of which is hereby acknowledged. Concurrently with
such
assignment and delivery and in exchange therefor, the Securities Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has caused to be executed, authenticated and delivered to or upon
the
order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trustee on behalf of the
Certificateholders that, as of the Closing Date or as of such date specifically
provided herein:
(i) The
Seller is duly organized, validly existing and in good standing and has the
power and authority to own its assets and to transact the business in which
it
is currently engaged. The Seller is duly qualified to do business and is in
good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure to so qualify would have a material adverse effect on (a)
its
business, properties, assets or condition (financial or other), (b) the
performance of its obligations under this Agreement, or (c) the value or
marketability of the Mortgage Loans.
(ii) The
Seller has the power and authority to make, execute, deliver and perform this
Agreement and to consummate all of the transactions contemplated hereunder
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official records. When
executed and delivered, this Agreement will constitute the Seller’s legal, valid
and binding obligations enforceable in accordance with its terms, except as
enforcement of such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and the rights of creditors of
federally insured financial institutions and by the availability of equitable
remedies, (2) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from securities laws
liabilities.
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(iii) The
Seller holds all necessary licenses, certificates and permits from all
governmental authorities necessary for conducting its business as it is
currently conducted. It is not required to obtain the consent of any other
party
or any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations,
or
registrations or declarations as shall have been obtained or filed, as the
case
may be, prior to the Closing Date.
(iv) The
execution, delivery and performance of this Agreement by the Seller will not
conflict with or result in a breach of, or constitute a default under, any
provision of any existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision of its
articles of incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any of its properties pursuant to any mortgage, indenture, contract or
other agreement to which it is a party or by which it may be bound.
(v) No
certificate of an officer, written statement or written report delivered
pursuant to the terms hereof of the Seller contains any untrue statement of
a
material fact or omits to state any material fact necessary to make the
certificate, statement or report not misleading.
(vi) The
transactions contemplated by this Agreement are in the ordinary course of the
Seller’s business.
(vii) The
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans to the Depositor, nor is the Seller aware of any pending
insolvency of the Seller.
(viii) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court, or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would materially and
adversely affect the Seller’s financial condition (financial or otherwise) or
operations, or materially and adversely affect the performance of any of its
duties hereunder.
(ix) There
are
no actions or proceedings against the Seller, or pending or, to its knowledge,
threatened, before any court, administrative agency or other tribunal; nor,
to
the Seller’s knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to perform any of its
respective obligations under, or the validity or enforceability of, this
Agreement.
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(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor,
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trustee, as assignee of the Depositor, in, to and under
the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
The
Seller shall, within 30 days after the Closing Date, provide the Trustee, the
Servicer, the Certificate Insurer, the Securities Administrator and the
Depositor a complete list of each party to the HarborView Mortgage Loan Trust
2006-13 transaction.
ARTICLE
III
ADMINISTRATION
AND MASTER SERVICING OF
THE MORTGAGE LOANS;
CREDIT
RISK MANAGER
SECTION
3.01. Master
Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and shall have
full power and authority to do any and all things which it may deem necessary
or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with each Servicer as necessary from
time-to-time to carry out the Master Servicer’s obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided
to
the Master Servicer by each Servicer and shall cause each Servicer to perform
and observe the covenants, obligations and conditions to be performed or
observed by such Servicer under the applicable Servicing Agreement.
Notwithstanding anything in this Agreement, the Servicing Agreements or the
Credit Risk Management Agreements to the contrary, the Master Servicer shall
have no duty or obligation to enforce the Credit Risk Management Agreements
or
to supervise, monitor or oversee the activities of the Servicers under the
related Credit Risk Management Agreements with respect to any action taken
or
not taken by the applicable Servicer at the direction of the Seller or pursuant
to a recommendation of the Credit Risk Manager. The Master Servicer shall
independently and separately monitor each Servicer’s servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis
and
coordinate corrective adjustments to the Servicers’ and Master Servicer’s
records, and provide such reconciled and corrected information to the Securities
Administrator to enable it to prepare the statements specified in Section 5.04
and any other information and statements required of the Securities
Administrator hereunder. The Master Servicer shall reconcile the results of
its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
related Servicing Account pursuant to the applicable Servicing
Agreements.
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The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicers or Master Servicer in exercising
such
powers.
The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as Custodian hereunder) regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon the written request of the related Servicer or the Master
Servicer, as applicable, shall execute and deliver to the related Servicer
and
the Master Servicer any court pleadings, requests for trustee’s sale or other
documents necessary or desirable to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain
a
deficiency judgment against the Mortgagor; or (iv) enforce any other rights
or
remedies provided by the Mortgage Note or Mortgage or otherwise available at
law
or equity.
57
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each of such REMIC
as a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee, the Securities
Administrator and the Master Servicer shall not (a) sell or knowingly permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans or is otherwise permitted pursuant to this Agreement or any
Servicing Agreement or the Trustee has received a REMIC Opinion prepared at
the
expense of the Trust Fund; and (b) other than with respect to a substitution
pursuant to the Mortgage Loan Purchase Agreement or Section 2.03 or 2.04 of
this
Agreement or as otherwise provided in this Agreement or any Servicing Agreement,
as applicable, accept any contribution to any REMIC after the Startup Day
without receipt of a REMIC Opinion.
SECTION
3.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust Fund) and the Depositor the compliance by each Servicer with its
duties under the related Servicing Agreement. In the review of each Servicer’s
activities, the Master Servicer may rely upon an officer’s certificate of the
Servicer with regard to such Servicer’s compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor
and
the Trustee thereof, and the Master Servicer shall issue such notice or take
such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trust Fund and the Certificateholders,
shall (acting as agent of the Trust Fund when enforcing the Trust Fund’s rights
under each Servicing Agreement) (i) enforce the obligations of each Servicer
under the related Servicing Agreement, and (ii) in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer which the Master Servicer shall cause the
Trustee to acknowledge; provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense except as provided in paragraph (c) below, provided that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action from the Trust
Fund.
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(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer or a successor Servicer
with
respect to any Servicing Agreement (including, without limitation, (i) all
reasonable legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer
as a
result of an event of default by such Servicer and (ii) all reasonable costs
and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement
of
such reasonable costs and expenses from the Distribution Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the predecessor Servicer, if any, that it
replaces or for any errors, acts or omissions of such predecessor Servicer
occurring prior to the termination of such Servicer; provided,
however,
the
Master Servicer shall not be relieved of its liability, if any, as Master
Servicer under this Section 3.03(e).
SECTION
3.04. Fidelity
Bond.
(a) The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or trustees.
The
Master Servicer shall provide the Trustee a copy of such policy and fidelity
bond upon request.
(b) The
Master Servicer shall promptly report to the Trustee any material changes that
may occur in the Master Servicer fidelity bond or the Master Servicer errors
and
omissions insurance policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses relating to the Mortgage Loans, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed
in
such reports together with the amount of such losses covered by insurance.
If a
bond or insurance claim report relating to the Mortgage Loans is filed with
any
of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee. Any amounts relating to the
Mortgage Loans collected by the Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Distribution Account. Any amounts relating
to
the Mortgage Loans collected by the applicable Servicer under any such bond
or
policy shall be remitted to the Master Servicer to the extent provided in the
applicable Servicing Agreement.
59
SECTION
3.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders, the Trust Fund and
the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Recoveries, and (iv) to effectuate, either in its
own
name on behalf of the Trust Fund, or in the name of the Trust Fund, foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable; provided,
however,
that
the Master Servicer shall not (and, consistent with its responsibilities under
Section 3.03, shall not permit any Servicer to) 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 result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, to enable the Master Servicer to master service and administer
the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust Fund, or in the name of the Trust Fund (or cause the related Servicer,
pursuant to the related Servicing Agreement, to institute such proceedings
either in the name of such Servicer on behalf of the Trust, or in the name
of
the Trust Fund), unless otherwise required by law or otherwise appropriate.
If
the Master Servicer or the Trustee has been advised that it is likely that
the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Trust Fund or the Trustee on its behalf or that the Trust
Fund or the Trustee, as applicable, would be adversely affected under the “doing
business” or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee, on behalf of the Trust Fund, in
the
appointment of a co-trustee pursuant to Section 8.10 hereof. In the performance
of its duties hereunder, the Master Servicer shall be an independent contractor
and shall not, except in those instances where it is taking action in the name
of the Trustee, be deemed to be the agent of the Trustee on behalf of the Trust
Fund.
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SECTION
3.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
SECTION
3.07. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement, promptly furnish to the Custodian, on behalf of the Trustee, two
copies of a certification substantially in the form of Exhibit F hereto signed
by a Servicing Officer or in a mutually agreeable electronic format which will,
in lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the related
Servicing Account maintained by the applicable Servicer pursuant to Section
4.01
or by the applicable Servicer pursuant to its Servicing Agreement have been
or
will be so deposited) and shall request that the Trustee (or the Custodian,
on
behalf of the Trustee) deliver to the applicable Servicer the related Mortgage
File. Upon receipt of such certification and request, the Trustee (or the
Custodian, on behalf of the Trustee), shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee (and the Custodian,
if
applicable) shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, each Servicer is authorized, to give,
as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall
be
chargeable to the related Servicing Account.
61
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, the Trustee shall
execute such documents as shall be prepared and furnished to the Trustee by
a
Servicer or the Master Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
(or
the Custodian, on behalf of the Trustee), shall, upon the request of a Servicer
or the Master Servicer, and upon delivery to the Trustee (or the Custodian,
on
behalf of the Trustee) of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit F (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in
its possession or control to the Servicer or the Master Servicer, as applicable.
Such trust receipt shall obligate the Servicer or the Master Servicer to return
the Mortgage File to the Trustee (or the Custodian on behalf of the Trustee)
when the need therefor by the Servicer or the Master Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of
a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Trustee (or the Custodian, on behalf
of
the Trustee), to the Servicer or the Master Servicer.
SECTION
3.08. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trust
Fund.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee (or Custodian) such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof or, in
the
case of the Servicers, by the applicable Servicing Agreement, to be delivered
to
the Trustee (or Custodian). Any funds received by the Master Servicer or by
a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Recoveries in respect of any Mortgage Loan shall be held for the benefit of
the
Trust Fund and the Certificateholders, subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing Fee,
any
additional compensation pursuant to Section 3.14 and any other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee
and any other amounts as provided in the applicable Servicing Agreement. The
Master Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, their respective
agents and accountants at any time upon reasonable request and during normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Master Servicer designated by it. In fulfilling
such
a request the Master Servicer shall not be responsible for determining the
sufficiency of such information.
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(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust Fund and the Certificateholders and shall be and remain the sole
and exclusive property of the Trust Fund; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
SECTION
3.09. Standard
Hazard Insurance and Flood Insurance Policies
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall enforce
any obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of
the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
(b) Pursuant
to Sections 4.01 and 4.02, any amounts collected by any Servicer or the Master
Servicer under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the applicable Servicing Agreement)
shall be deposited into the Distribution Account, subject to withdrawal pursuant
to Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicer in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Sections 4.02
and 4.03.
SECTION
3.10. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of the
Trustee, the Trust Fund and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in
the
Distribution Account upon receipt, except that any amounts realized that are
to
be applied to the repair or restoration of the related Mortgaged Property as
a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
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SECTION
3.11. Maintenance
of the Primary Insurance Policies.
(a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use
its
best reasonable efforts to cause each Servicer (to the extent required under
the
related Servicing Agreement) to keep in force and effect (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan (including any lender-paid
Primary Insurance Policy) in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable. The Master Servicer shall
not, and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary Insurance
Policy that is in effect at the date of the initial issuance of the Mortgage
Note and is required to be kept in force hereunder except in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to cause each Servicer (to the extent required under
the
related Servicing Agreement) to present, on behalf of the Trustee, the Trust
and
the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts collected by
the
Servicer under any Primary Insurance Policies shall be remitted to the
Securities Administrator for deposit in the Distribution Account, subject to
withdrawal pursuant to Section 4.03.
SECTION
3.12. Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available and delivered) of any
Primary Insurance Policies or certificate of insurance if applicable and
available, and any certificates of renewal as to the foregoing as may be issued
from time to time as contemplated by this Agreement and which come into its
possession. Until all amounts distributable in respect of the Certificates
have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or the Custodian, as directed
by
the Trustee) shall also retain possession and custody of each Mortgage File
in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause to be delivered to the Trustee
(or the Custodian, as directed by the Trustee), upon the execution or receipt
thereof the originals of any Primary Insurance Policies, any certificates of
renewal, and such other documents or instruments that constitute portions of
the
Mortgage File that come into the possession of the Master Servicer from time
to
time.
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SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the applicable Servicing Agreement.
SECTION
3.14. Additional
Compensation to the Master Servicer.
The
Master Servicer shall be entitled to receive the Master Servicing Fee and,
pursuant to Section 4.02(c), certain income and gain realized from any
investment of funds in the Distribution Account shall be for the benefit of
the
Master Servicer as additional compensation. Servicing compensation in the form
of assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in the applicable
Servicing Agreement, not including any Prepayment Penalty Amounts) shall be
retained by the applicable Servicer, or the Master Servicer, and shall not
be
deposited in the related Servicing Account or the Distribution
Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus the Master
Servicing Fee due to the Master Servicer in respect of any Distribution Date
shall be reduced in accordance with Section 5.06.
SECTION
3.15. REO
Property.
(a) In
the
event the Trust Fund (or the Trustee, on behalf of the Trust), acquires
ownership of any REO Property in respect of any related Mortgage Loan, the
deed
or certificate of sale shall be issued to the Trust Fund, or if required under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust Fund.
The Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible (and in no event later than three years after
acquisition) and in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. Pursuant to its efforts to sell
such
REO Property, the Master Servicer shall cause the applicable Servicer to protect
and conserve such REO Property in the manner and to the extent required by
the
applicable Servicing Agreement, in accordance with the REMIC Provisions and
in a
manner that does not result in a tax on “net income from foreclosure property”
or cause such REO Property to fail to qualify as “foreclosure property” within
the meaning of Section 860G(a)(8) of the Code.
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Servicing Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided, that any such unreimbursed Advances as well as
any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior
to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
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(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above shall be deposited in
the
related Servicing Account on or prior to the applicable Determination Date
in
the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Distribution Account on the next succeeding applicable Servicer Remittance
Date.
SECTION
3.16. Assessments
of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as Custodian, each at its own expense, shall furnish, and each such
party shall cause any Servicing Function Participant engaged by it to furnish
or
otherwise make available, each at its own expense, to the Securities
Administrator and the Depositor (provided that the Master Servicer shall furnish
copies of each such report received by it from the Servicers to the Depositor),
a report on an assessment of compliance with the Relevant Servicing Criteria
that contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
party
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 3.19(b) and for each fiscal year thereafter, whether
or not a Form 10-K is required to be filed, including, if there has been any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(ii) No
later
than the end of each fiscal year for the Trust Fund for which a 10-K is required
to be filed, the Master Servicer and the Trustee, in its capacity as Custodian,
shall each forward to the Securities Administrator and the Depositor the name
of
each Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as
the
Master Servicer and Securities Administrator are the same Person). When the
Master Servicer, the Trustee, in its capacity as Custodian, and the Securities
Administrator (or any Servicing Function Participant engaged by them) submit
their assessments to the Securities Administrator, such parties will also at
such time include the assessment (and attestation pursuant to subsection (b)
of
this Section 3.16) of each Servicing Function Participant engaged by
it.
66
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as
Custodian, and any Servicing Function Participant engaged by such parties as
to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria by each such party, and (ii) the Securities Administrator shall confirm
that the assessments, taken as a whole, address all of the Servicing Criteria
and taken individually address the Relevant Servicing Criteria for each party
as
set forth on Exhibit Q and on any similar exhibit set forth in each Servicing
Agreement in respect of the related Servicer and notify the Depositor of any
exceptions.
(iv) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from each Servicer (or the Subservicer on its behalf) with its
own assessment of compliance to be submitted to the Securities Administrator
pursuant to this Section.
(v) In
the
event the Master Servicer, the Securities Administrator, the Trustee in its
capacity as Custodian (to the extent it is also acting as custodian) or any
Servicing Function Participant engaged by such party is terminated, assigns
its
rights and obligations under or resigns pursuant to the terms of this Agreement,
or any other applicable agreement, as the case may be, such party shall provide
a report on assessment of compliance pursuant to this Section 3.16(a) or to
such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer, the Securities Administrator, the Trustee, in its capacity
as Custodian, each at its own expense, shall cause, and each such party shall
cause any Servicing Function Participant engaged by it to cause, each at its
own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Credit Risk Manager, the Trustee, in its
capacity as Custodian, the Securities Administrator, or such other Servicing
Function Participants, as the case may be) and that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Securities
Administrator and the Depositor, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must
be
available for general use and not contain restricted use language.
67
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Master Servicer shall include each such attestation furnished to it by the
Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(iv) In
the
event the Master Servicer, the Securities Administrator, the Trustee in its
capacity as Custodian (to the extent it is also acting as custodian) or any
servicer or any Servicing Function Participant engaged by such party is
terminated, assigns its rights and duties under or resigns pursuant to the
terms
of this Agreement, or any applicable custodial agreement, servicing agreement
or
subservicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section 3.16
notwithstanding any such termination, assignment or resignation.
(v) The
Trustee’s obligation in its capacity as Custodian to provide assessments of
compliance and attestations under this Section 3.16 shall terminate upon the
filing of a Form 15 suspension notice on behalf of the Trust Fund.
Notwithstanding the foregoing, after the occurrence of such event, and provided
that the Depositor is not otherwise provided with such reports or copies of
such
reports, the Master Servicer and the Securities Administrator shall be obligated
to provide a copy of such reports, by March 31 of each year, to the
Depositor.
SECTION
3.17. Annual
Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any or Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 10 (with a 5 calendar day cure period) of
each
year, commencing in March 2007, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
68
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicers with its own annual statement of compliance to be submitted
to the Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 with respect to the period of time
it
was subject to this Agreement or any other applicable agreement, as the case
may
be.
SECTION
3.18. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities Administrator
and
the Master Servicer shall provide, and each such party shall cause any Servicing
Function Participant engaged by it to provide, to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 10 (with a 5 calendar day cure period) of each year in which the Trust
Fund is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up
Certification”)
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. A senior officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable subservicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section 3.18
with respect to the period of time it was subject to this Agreement or any
applicable subservicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not
be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in
the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
SECTION
3.19. Reports
Filed with Securities and Exchange Commission.
(a) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file each
Form 10-D with a copy of the related Distribution Date Statement attached
thereto. Any disclosure in addition to the Distribution Date Statement that
is
required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall
be reported by the parties set forth on Exhibit O to the Securities
Administrator and Depositor and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
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(ii) As
set
forth on Exhibit R hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to the HarborView Mortgage Loan Trust 2006-13 transaction
shall be required to provide to the Securities Administrator, the Depositor
and
XxXxx Xxxxxx LLP, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit U hereto (an “Additional
Disclosure Notification”) and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
in Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall, no later than
10
calendar days after the related Distribution Date, forward electronically a
copy
of the Form 10-D to the Depositor and XxXxx Xxxxxx LLP (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two Business Days
after receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date (or the next succeeding Business Day), the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-D. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d)(ii) of
this
Section 3.19. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of their respective duties
under this Section 3.19(a) related to the timely preparation, execution and
filing of Form 10-D is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.19(a). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
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(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-D with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing, no later than
the fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D if the answer to the questions should be “no.”
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
(b) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th day after the end of each fiscal year of the Trust Fund in
which a Form 10-K is required to be filed or such earlier date as may be
required by the Exchange Act (the “10-K Filing Deadline”) (it being understood
that the fiscal year for the Trust Fund ends on December 31st of each year),
commencing in March 2007, the Securities Administrator shall prepare and file
on
behalf of the Trust Fund a Form 10-K, in form and substance as required by
the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and the related
Servicing Agreement, (i) an annual compliance statement for each Servicer,
the
Master Servicer and the Securities Administrator and any Servicing Function
Participant engaged by such parties (a “Reporting Servicer”) as described under
Section 3.17 and in such other agreement, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Reporting Servicer,
as
described under Section 3.16(a), and (B) if any Reporting Servicer’s report on
assessment of compliance with servicing criteria described under Section 3.16(a)
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any Reporting Servicer’s report on assessment
of compliance with servicing criteria described under Section 3.16(a) is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.16(b), and (B) if any registered public
accounting firm attestation report described under Section 3.16(b) identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 3.18 (provided,
however, that the Securities Administrator, at its discretion, may omit from
the
Form 10-K any annual compliance statement, assessment of compliance or
attestation report that is not required to be filed with such Form 10-K pursuant
to Regulation AB). Any disclosure or information in addition to (i) through
(iv)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be reported by the parties set forth on Exhibit O to the
Depositor and Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-K Disclosure, except as set forth in the next
paragraph.
71
(ii) As
set
forth on Exhibit S hereto, no later than March 10 (with a 5 calendar day cure
period) of each year that the Trust Fund is subject to the Exchange Act
reporting requirements, commencing in 2007, (i) the parties to the HarborView
Mortgage Loan Trust 2006-13 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Depositor and XxXxx Xxxxxx LLP.
Within three Business Days after receipt of such copy, but no later than March
25th, the Depositor shall notify the Securities Administrator in writing of
any
changes to or approval of such Form 10-K. In the absence of receipt of any
written changes or approval, the Securities Administrator shall be entitled
to
assume that such Form 10-K is in final form and the Securities Administrator
may
proceed with the execution and filing of the Form 10-K. A senior officer of
the
Master Servicer in charge of the master servicing function shall sign each
Form
10-K. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K
needs to be amended, the Securities Administrator will follow the procedures
set
forth in subsection (d)(ii) of this Section 3.19. Promptly (but no later than
1
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K filed by the Securities Administrator. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.19(b) related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Additional Servicer or Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.19(b), Section 3.18, Section 3.17, Section 3.16(a) and Section
3.16(b). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-K, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
72
(iv) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing, no later than
March 15th with respect to the filing of a report on Form 10-K, if the answer
to
the questions should be “no.” The Securities Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(c) Reports
Filed on Form 8-K.
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Securities Administrator shall prepare and file on behalf of
the
Trust Fund a Form 8-K, as required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included in Form 8-K (“Form 8-K Disclosure
Information”) shall be reported by the parties set forth on Exhibit O to the
Depositor and Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set
forth on Exhibit T hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than the close of business (New
York City time) on the 2nd Business Day after the occurrence of a Reportable
Event (i) the parties to the HarborView Mortgage Loan Trust 2006-13 transaction
shall be required to provide to the Securities Administrator and the Depositor,
to the extent known by a responsible officer thereof, in XXXXX-compatible form
(which may be Word or Excel documents easily convertible to XXXXX format),
or in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Form 8-K Disclosure Information,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Form 8-K Disclosure Information. The Seller will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information in Form 8-K pursuant to this paragraph.
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(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor
and
XxXxx Xxxxxx LLP.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing of any change to or approval of such Form 8-K. In
the
absence of receipt of any written changes or approval, the Securities
Administrator shall be entitled to assume that such Form 8-K is in final form
and
the
Securities Administrator
may proceed with the execution and filing of the Form 8-K. A duly authorized
representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Securities Administrator will follow the procedures set forth in subsection
(d) of this Section 3.19. Promptly (but no later than 1 Business Day) after
filing with the Commission, the Securities Administrator will, make available
on
its internet website a final executed copy of each Form 8-K filed by the
Securities Administrator. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of their
respective duties under this Section 3.19(c) related to the timely preparation,
execution and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.19(c). Neither the Securities Administrator nor the Master Servicer
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from the Securities Administrator’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form
8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(d) Suspension
of Reporting; Amendments; Late Filings.
1. On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
2. In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor and XxXxx Xxxxxx LLP either via mail, e-mail
or
telephone. In the case of Form 10-D and 10-K, the parties to this Agreement
will
cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended in connection with
any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or
any
Form 8-K Disclosure Information or any amendment to such disclosure (other
than
for purposes of restating any Distribution Date Statement), the Securities
Administrator will electronically notify the Depositor and XxXxx Xxxxxx LLP
and
such other parties to the transaction as are affected by such amendment and
such
parties will cooperate to prepare any necessary 8-KA, 10-D/A or 10-K/A. Any
Form
15, Form 12b-25 or any amendment to Form 8-K or 10-D shall be signed by a duly
authorized representative of the Master Servicer. Any Form 10-K amendment shall
be signed by a senior officer of the Master Servicer in charge of the master
servicing function. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of their
respective duties under this Section 3.19(d) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under
this
Section. Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file any
such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
74
Any
notice or notification required to be delivered by the Securities Administrator
to the Depositor pursuant to this Section 3.19, may be delivered via facsimile
to (000) 000-0000 or telephonically by calling (000) 000-0000, and any notice
or
notification required to be delivered by the Securities Administrator to XxXxx
Xxxxxx LLP pursuant to this Section 3.19, may be delivered via e-mail to
xxxxxx@xxxxxxxxxxx.xxx and to XXXXX@xxxxxxxxxxx.xxx
or such
other address as may be provided by the Depositor’s counsel from time to
time.
SECTION
3.20. Additional
Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.21. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.22 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information as
the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
75
SECTION
3.22. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 or any additional disclosure pursuant to Section 3.19
and including the Depositor, the Master Servicer, the Securities Administrator,
the Trustee in its capacity as Custodian and any Servicing Function Participant
engaged by such party, respectively (each, an “Item 1122 Responsible Party”)
shall indemnify and hold harmless the Securities Administrator, the Master
Servicer and the Depositor, respectively, and each of their directors, officers,
employees, agents, and affiliates from and against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any
material misstatement or omission in (x) any compliance certificate delivered
by
it, or by any Servicing Function Participant engaged by it, pursuant to this
Agreement, (y) any assessment or (except in the case of the Trustee, in its
capacity as Custodian) attestation delivered by or on behalf of it, or by any
Servicing Function Participant engaged by it, pursuant to this Agreement, or
(z)
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K
Disclosure Information concerning such party and provided by it,
or (c)
the negligence, bad faith or willful misconduct of such Item 1122 Responsible
Party in connection with its performance hereunder relating to its obligations
as an Item 1122 Responsible Party. If the indemnification provided for herein
is
unavailable or insufficient to hold harmless the Master Servicer, the Securities
Administrator, the Depositor or the Seller, as the case may be, then each Item
1122 Responsible Party agrees that it shall contribute to the amount paid or
payable by the Securities Administrator, the Master Servicer and the Depositor,
as applicable, as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer or the Depositor
in such proportion as is appropriate to reflect the relative fault of the
Securities Administrator, the Master Servicer or the Depositor on the one hand
and such Item 1122 Responsible Party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party to
this Agreement.
76
SECTION
3.23. [Reserved].
SECTION
3.24. Closing
Opinion of Counsel.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee, and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by the
Master Servicer and the enforceability thereof.
SECTION
3.25. [Reserved].
SECTION
3.26. Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a national banking association under the laws of the jurisdiction
of its incorporation, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.27. Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.22 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that
with
respect to any such claim or legal action (or pending or threatened claim or
legal action), an Indemnified Person shall have given the Master Servicer and
the Depositor written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Indemnified Person’s failure to give such notice shall not affect the
Indemnified Person’s right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Custodian, the Master
Servicer or the Securities Administrator and the termination of this
Agreement.
77
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise indemnified by the Master Servicer as
referred to in Subsection (a) above or Subsection (c) below.
(c) In
addition to any indemnity required pursuant to Section 3.22 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.19, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.19
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.19, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), an Indemnified Person shall have given the Securities Administrator
written notice thereof promptly after such Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Indemnified
Person’s failure to give such notice shall not affect the Indemnified Person’s
right to indemnification hereunder. This indemnity shall survive the resignation
or removal of the Trustee, the Master Servicer or the Securities Administrator
and the termination of this Agreement.
SECTION
3.28. Limitations
on Liability of the Master Servicer and Others; Indemnification of Trustee
and
Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.27:
(a) The
Master Servicer has undertaken to perform only such duties as are specifically
set forth in this Agreement. Neither the Master Servicer nor any of the
directors, officers, employees or agents of the Master Servicer shall be under
any liability to the Indemnified Persons, the Depositor, the Trust Fund or
the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
78
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodian (including for such purpose, the Trustee acting in
its
capacity as Custodian) and any director, officer, employee or agent of the
Master Servicer, the Trustee or the Custodian shall be indemnified by the Trust
Fund and held harmless thereby against any loss, liability or expense (except
as
otherwise provided herein with respect to expenses) (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or any Servicing Agreement or the transactions contemplated hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the Servicer thereunder), other than (i)
with
respect to the Master Servicer only, any such loss, liability or expense related
to the Master Servicer’s failure to perform its duties in compliance with this
Agreement or (ii) with respect to the Master Servicer or Custodian only, any
such loss, liability or expense incurred by reason of the Master Servicer’s or
the Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its own duties hereunder or by reason of reckless disregard
of
its own obligations and duties hereunder or under a custodial
agreement.
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Trust Fund and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, and the Master Servicer shall be entitled to
be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Section 3.28(d) shall affect the Master Servicer’s obligation to
supervise, or to take such actions as are necessary to enforce, the servicing
and administration of the Mortgage Loans pursuant to Sections 3.01 and
3.03.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust Fund might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of any Servicer,
except as otherwise expressly provided herein.
SECTION
3.29. Master
Servicer Not to Resign.
(a)
Except as provided in Section 3.31, the Master Servicer shall not resign from
the obligations and duties hereby imposed on it except upon a determination
that
any such duties hereunder are no longer permissible under applicable law and
such impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 7.02 hereof.
The Trustee shall notify each Rating Agency of the resignation of the Master
Servicer.
79
(b)
If,
at any time, Xxxxx Fargo Bank, N.A., as Master Servicer resigns under this
Section 3.29, or sells or assigns its rights and obligations under Section
3.31,
or is removed as Master Servicer pursuant to Section 7.01, then at such time
Xxxxx Fargo Bank, N.A. also shall resign (and shall be entitled to resign)
as
Securities Administrator, Administrator, Paying Agent and Certificate Registrar
under this Agreement. No such resignation by Xxxxx Fargo Bank, N.A. as
Securities Administrator, Administrator, Paying Agent or Certificate Registrar
under this Agreement shall become effective until a successor Securities
Administrator, successor Administrator, successor Paying Agent and successor
Certificate Registrar reasonably satisfactory to the Depositor shall have
assumed the responsibilities and obligations of the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar in accordance with this
Agreement. The Securities Administrator shall notify each Rating Agency of
the
resignation of Xxxxx Fargo Bank, N.A. as the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar.
SECTION
3.30. Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee. If the
successor master servicer does not agree that the proposed compensation is
fair,
such successor master servicer shall obtain two quotations of market
compensation from third parties actively engaged in the servicing of
single-family mortgage loans; provided,
however,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
SECTION
3.31. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of the Depositor, which consent shall not be unreasonably
withheld or delayed, and provided further that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall
be
qualified to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall
have a net worth of not less than $10,000,000 (unless otherwise approved by
each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Depositor (as evidenced in writing signed by the Depositor);
and (d) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement or any custodial agreement from and after the effective
date of such agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Master Servicer and
each
Rating Agency’s ratings of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the
Trustee and the Depositor an Officer’s Certificate and an Independent Opinion of
Counsel, (delivered at the Master Servicer’s expense) each stating that all
conditions precedent to such action under this Agreement have been completed
and
such action is permitted by and complies with the terms of this Agreement.
No
such assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
80
SECTION
3.32. Reporting
Requirements of the Commission
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D,
10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and
the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01)
in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
SECTION
3.33. Duties
of the Credit Risk Manager.
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc., formerly known as The Murrayhill
Company, as Credit Risk Manager. For and on behalf of the Depositor,
the Credit
Risk Manager will provide reports and recommendations concerning certain
delinquent and defaulted Mortgage Loans, and as to the collection of
any
Prepayment Premium Amounts with respect to the Mortgage Loans. Such reports
and
recommendations will be based upon information provided pursuant to a
Credit
Risk Management Agreement to the Credit Risk Manager by the Servicers
and/or the
Master Servicer. The Credit Risk Manager shall look solely to the Servicers
and/or the Master Servicer for all information and data (including loss
and
delinquency information and data) and loan level information and data
relating
to the servicing of the Mortgage Loans and neither the Securities Administrator
nor the Trustee shall have any obligation to provide any such information
to the
Credit Risk Manager and shall not otherwise have any responsibility under
the
Credit Risk Management Agreement.
(b) On
or
about the 15th calendar day of each month, the Credit Risk Manager shall
have
prepared and shall make available to the Depositor, the Securities Administrator
and each Certificateholder, the following reports (each such report to
be made
in a format compatible with XXXXX filing requirements):
(i) Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit
Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans
in any
delinquency status, including current and paid-off loans, and may contain
the
comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report
shall be presented in substantially the same format attached hereto as
Exhibit
V-1;
81
(ii) Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity
for the
Mortgage Loans. Each Loss Severity Report shall include detail of all
losses
reported by the related Servicer as Realized Losses, except those for
which the
related Servicer has not provided detail adequate for reporting purposes.
The
Loss Severity Report shall be presented in substantially the same format
attached hereto as Exhibit V-2;
(iii) Prepayment
Premiums Report:
A
summary of Prepayment Premium Amounts assessed or waived by the related
Servicer. The Prepayment Premiums Report shall be presented in substantially
the
same format attached hereto as Exhibit V-3; and
(iv) Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
|
(A)
|
Delinquency
Trend:
The delinquency trend, over time, of the Mortgage
Loans;
|
|
(B)
|
Prepayment
Analysis:
The constant prepayment rate “CPR” experience of the Mortgage Loans;
and
|
|
(C)
|
Standard
Default Assumption:
The Standard Default Assumption experience of the Mortgage
Loans.
|
The
Analytics Report shall be presented in substantially the same format
attached
hereto as Exhibit V-4.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Securities Administrator and the Rating Agencies
via the
Credit Risk Manager’s internet website. The Credit Risk Manager’s internet
website shall initially be located at xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “Harborview 2006-13.” The Securities
Administrator shall not have any obligation to review such reports or
otherwise
monitor or supervise the activities of the Credit Risk Manager.
SECTION
3.34. Limitation
Upon Liability of the Credit Risk Manager.
Except
as
provided pursuant to Section 3.35, neither the Credit Risk Manager, nor
any of
the directors, officers, employees or agents of the Credit Risk Manager,
shall
be under any liability to the Trustee, the Securities Administrator,
the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in
reliance
upon information provided by Servicers and/or the Master Servicer under
the
applicable Credit Risk Management Agreement or for errors in judgment;
provided,
however,
that
this provision shall not protect the Credit Risk Manager or any such
person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its
duties or
by reason of reckless disregard for its obligations and duties under
this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may
rely in
good faith on any document of any kind prima facie properly executed
and
submitted by any Person respecting any matters arising hereunder, and
may rely
in good faith upon the accuracy of information furnished by the Servicer
and/or
the Master Servicer pursuant to the applicable Credit Risk Management
Agreement
in the performance of its duties thereunder and hereunder.
82
SECTION
3.35. Indemnification
by the Credit Risk Manager.
The
Credit Risk Manager agrees to indemnify the Depositor, the Securities
Administrator, the Master Servicer and the Trustee, and each of their
respective
directors, officers, employees and agents and the Trust Fund and hold
each of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and
any other
costs, fees and expenses that any of them may sustain arising out of
or based
upon the engagement of any Subcontractor in violation of Section 3.13(e)
or any
failure by the Credit Risk Manager to deliver any information, report,
certification, accountants’ letter or other material when and as required under
this Agreement, including any report under Sections 3.19(a) or (b).
SECTION
3.36. Removal
of Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the
exercise
of its or their sole discretion, at any time, without cause, upon ten
(10) days
prior written notice. The Certificateholders shall provide such written
notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon
receipt
of such notice.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain one or more custodial accounts (the “Servicing
Accounts”)
in
accordance with the applicable Servicing Agreement, with records to be
kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which
accounts
shall be deposited within 48 hours (or as of such other time specified
in the
related Servicing Agreement) of receipt all collections of principal
and
interest on any Mortgage Loan and with respect to any REO Property received
by a
Servicer, including Principal Prepayments, Prepayment Premium Amounts,
Insurance
Proceeds, Liquidation Proceeds, Recoveries and advances made from the
Servicer’s
own funds (less, in the case of each Servicer, the applicable servicing
compensation, in whatever form and amounts as permitted by the applicable
Servicing Agreement) and all other amounts to be deposited in each such
Servicing Account. The Servicer is hereby authorized to make withdrawals
from
and deposits to the related Servicing Account for purposes required or
permitted
by this Agreement and the applicable Servicing Agreement. For the purposes
of
this Agreement, Servicing Accounts shall also include such other accounts
as the
Servicer maintains for the escrow of certain payments, such as taxes
and
insurance, with respect to certain Mortgaged Properties. Each Servicing
Agreement sets forth the criteria for the segregation, maintenance and
investment of each related Servicing Account, the contents of which are
acceptable to the parties hereto as of the date hereof and changes to
which
shall not be made unless such changes are made in accordance with the
provisions
of Section 12.01 hereof.
83
(b) [Reserved];
(c) To
the
extent provided in the related Servicing Agreement and subject to this
Article
IV, on or before each applicable Servicer Remittance Date, each Servicer
shall
withdraw or shall cause to be withdrawn from the related Servicing Account
and
shall immediately remit or cause to be remitted to the Securities Administrator
for deposit into the Distribution Account, amounts representing the following
collections and payments (other than with respect to principal of or
interest on
the Mortgage Loans due on or before the Cut-off Date) with respect to
each of
the Mortgage Loans it is servicing:
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof
advanced
by the Servicers pursuant to the Servicing Agreements which were due
on or
before the related Due Date, net of the amount thereof comprising the
Servicing
Fees;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicers
with
respect to such Mortgage Loans in the related Prepayment Period, with
interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees;
(iii) Principal
Prepayments in part received by the Servicers for such Mortgage Loans
in the
related Prepayment Period;
(iv) Recoveries
received by the Servicers with respect to such Mortgage Loans; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the related Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided
in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or a
Servicer
for Advances which have been recovered by subsequent collection from
the related
Mortgagor, to remove amounts deposited in error, to remove fees, charges
or
other such amounts deposited on a temporary basis, or to clear and terminate
the
account at the termination of this Agreement in accordance with Section
10.01 or
as otherwise provided in the Servicing Agreements. As provided in Sections
4.01(c) and 4.02(b), certain amounts otherwise due to the Servicers may
be
retained by them and need not be remitted to the Securities
Administrator.
84
SECTION
4.02. Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of
the
Trustee, for the benefit of the Trust Fund and the Certificateholders,
the
Distribution Account as a segregated account or accounts, each of which
shall be
an Eligible Account. The Distribution Account shall constitute a trust
account
of the Trust Fund segregated on the books of the Securities Administrator
and
held by the Securities Administrator in trust in its Corporate Trust
Office, and
the Distribution Account and the funds deposited therein shall not be
subject
to, and shall be protected from, all claims, liens, and encumbrances
of any
creditors or depositors of the Securities Administrator or the Master
Servicer
(whether made directly, or indirectly through a liquidator or receiver
of the
Trustee, the Securities Administrator or the Master Servicer). All Permitted
Investments shall mature or be subject to redemption or withdrawal on
or before,
and shall be held until, the immediately succeeding Distribution Date.
The
Securities Administrator, Trustee or their affiliates are permitted to
receive
additional compensation that could be deemed to be in the their economic
self-interest for (i) serving as investment adviser, administrator, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using affiliates to effect transactions in certain
Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Master Servicer and the Securities Administrator will deposit in
the
Distribution Account as identified by the Master Servicer or the Securities
Administrator and as received by the Master Servicer or the Securities
Administrator, the following amounts:
(i) any
amounts withdrawn from a Servicing Account pursuant to Section 4.01(c)
and the
Servicing Agreements and remitted to the Securities Administrator;
(ii) any
amounts required to be deposited in the Distribution Account by the Master
Servicer with respect to the Mortgage Loans pursuant to this Agreement,
including (a) Advances and any Compensating Interest Payments required
to be
made by the Master Servicer to the extent required but not made by the
Servicers
and (b) the amount of any Insurance Proceeds or Liquidation Proceeds
received by
or on behalf of the Master Servicer which were not deposited in a Servicing
Account;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or
on behalf
of the Master Servicer which were not deposited into a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller
or the
related Originator under this Agreement or the related Purchase Agreement,
as
applicable, any Substitution Adjustments pursuant to Section 2.03 of
this
Agreement and all proceeds of any Mortgage Loans or property acquired
with
respect thereto purchased by the Terminator pursuant to Section
10.01;
(v) any
amounts required to be deposited by the Master Servicer with respect
to losses
on investments of deposits in the Distribution Account; and
85
(vi) any
other
amounts received by or on behalf of the Master Servicer or the Securities
Administrator and required to be deposited in the Distribution Account
pursuant
to this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of
the Trust
Fund and the Certificateholders in accordance with the terms and provisions
of
this Agreement. The requirements for crediting the Distribution Account
shall be
exclusive, it being understood and agreed that, without limiting the
generality
of the foregoing, payments in the nature of (i) late payment charges
or
assumption fees, tax service fees, statement account charges or payoff
charges,
substitution, satisfaction, release and other like fees and charges (including
all Prepayment Premium Amounts, unless specified in the related Servicing
Agreement) and (ii) the items enumerated in Subsections 4.03(a)(i), (ii),
(iii),
(iv), (vi), (vii) and (x) with respect to the Securities Administrator,
need not
be remitted by the Servicers to the Master Servicer or to the Distribution
Account. In the event that the Master Servicer shall deposit or cause
to be
deposited to the Distribution Account any amount not required to be credited
thereto, the Securities Administrator, upon receipt of a written request
therefor signed by a Servicing Officer of the Master Servicer, shall
promptly
transfer such amount to the Master Servicer, any provision herein to
the
contrary notwithstanding.
(c) The
amount at any time credited to the Distribution Account shall, if invested,
be
invested at the direction of the Master Servicer, in the name of the
Trustee, or
its nominee, for the benefit of the Certificateholders, in Permitted
Investments
as follows. All Permitted Investments and investment income with respect
to the
investment of funds in the Distribution Account shall be for the benefit
of the
Master Servicer. All Permitted Investments shall mature or be subject
to
redemption or withdrawal on or before, and shall be held until, the Business
Day
prior to the next succeeding Distribution Date (except that if such Permitted
Investment is an obligation of the Master Servicer, then such Permitted
Investment shall mature not later than such applicable Distribution Date).
Any
and all investment earnings from such Permitted Investments shall be
paid to the
Master Servicer, and the risk of loss of moneys resulting from such investments
shall be borne by and be the risk of the Master Servicer. The Master
Servicer
shall deposit the amount of any such loss in the Distribution Account
within two
Business Days of receipt of notification of such loss but not later than
the
next succeeding Distribution Date.
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator shall, from time to time, withdraw or transfer
funds
from the Distribution Account to a Servicer, to the Master Servicer,
to the
Trustee or to itself for the following purposes:
(i) to
reimburse the Master Servicer or any Servicer for any Advance of its
own funds
or of such Servicer’s own funds, the right of the Master Servicer or a Servicer
to reimbursement pursuant to this subclause (i) being limited to amounts
received on a particular Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds)
which
represent late payments or recoveries of the principal of or interest
on such
Mortgage Loan respecting which such Advance was made;
86
(ii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds
or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts
expended
by the Master Servicer or such Servicer in good faith in connection with
the
restoration of the related Mortgaged Property which was damaged by an
Uninsured
Cause or in connection with the liquidation of such Mortgage Loan;
(iii) to
reimburse the Master Servicer or any Servicer from Insurance Proceeds
relating
to a particular Mortgage Loan for insured expenses incurred with respect
to such
Mortgage Loan and to reimburse the Master Servicer or such Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation
Expenses
incurred with respect to such Mortgage Loan;
(iv) to
pay
the Master Servicer or any Servicer, as appropriate, from Liquidation
Proceeds
or Insurance Proceeds received in connection with the liquidation of
any
Mortgage Loan, the amount which it or such Servicer would have been entitled
to
receive under subclause (viii) or (x), as applicable, of this Subsection
4.03(a)
as servicing compensation on account of each defaulted scheduled payment
on such
Mortgage Loan if paid in a timely manner by the related Mortgagor;
(v) to
pay
the Master Servicer or any Servicer from the Purchase Price for any Mortgage
Loan, the amount which the Master Servicer or such Servicer would have
been
entitled to receive under subclause (viii) or (x), as applicable, of
this
Subsection 4.03(a) as servicing compensation;
(vi) to
reimburse the Master Servicer or any Servicer for servicing related advances
of
funds, the right to reimbursement pursuant to this subclause being limited
to
amounts received on the related Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds and Liquidation Proceeds)
which
represent late recoveries of the payments for which such servicing advances
were
made;
(vii) to
reimburse the Master Servicer or any Servicer for any Advance or advance,
after
a Realized Loss has been allocated with respect to the related Mortgage
Loan if
the Advance or advance has not been reimbursed pursuant to clauses (i)
and
(vi);
(viii) to
pay
the Master Servicer its monthly Master Servicing Fee and any investment
income
and other additional servicing compensation payable pursuant to Section
3.14;
(ix) to
reimburse the Master Servicer or the Securities Administrator for any
expenses
recoverable by the Master Servicer or the Securities Administrator pursuant
to
Sections 3.03 and 3.28;
87
(x) to
reimburse or pay any Servicer any such amounts as are due thereto under
the
applicable Servicing Agreement and have not been retained by or paid
to such
Servicer, to the extent provided in the related Servicing
Agreement;
(xi) to
reimburse the Trustee and the Securities Administrator for expenses,
costs and
liabilities incurred by or reimbursable to it from funds of the Trust
Fund
pursuant to Sections 3.27, 3.28, 8.05 or 8.10 (including those related
to the
fees and expenses of the Custodian) and to reimburse the Trustee for
any fees,
costs and expenses costs incurred by or reimbursable to it pursuant to
Section
2.03(a), 7.01(b), 8.02, 8.05 or 8.07, to the extent not otherwise reimbursed
to
it;
(xii) to
pay to
the Master Servicer all investment earnings on amounts on deposit in
the
Distribution Account to what it is entitled under Section 4.02(c);
(xiii) to
remove
amounts deposited in error;
(xiv) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xv) to
reimburse the Securities Admnistrator for expenses, costs and liabilities
incurred by or reimbursable to it as a result of the performance of its
duties
under the Yield Maintenance Agreement; and
(xvi) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) In
addition, on or before the Business Day immediately preceding each Distribution
Date, the Master Servicer shall deposit in the Distribution Account (or
remit to
the Securities Administrator for deposit therein) any Advances or Compensating
Interest Payments, to the extent required to be made but not made by
the related
Servicer and required to be made by the Master Servicer hereunder with
respect
to the Mortgage Loans.
(c) The
Securities Administrator or the Master Servicer shall keep and maintain
separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose
of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (vii), inclusive and subclauses (ix)
and (xi)
or with respect to any such amounts which would have been covered by
such
subclauses had the amounts not been retained by the Master Servicer without
being deposited in the Distribution Account under Section 4.02(b).
(d) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Securities
Administrator shall obtain and verify certain information and documentation
from
the other parties hereto, including, but not limited to, each such party’s name,
address and other identifying information.
(e) On
each
Distribution Date, the Securities Administrator, as Paying Agent, shall
withdraw
funds on deposit in the Distribution Account to the extent of the aggregate
Available Funds and distribute such amounts to the Holders of the Certificates
and any other parties entitled thereto, in accordance with Section
5.01.
88
SECTION
4.04. Yield
Maintenance Account.
On
or
prior to the Closing Date, the Securities Administrator, on behalf
of the Trust
Fund, shall cause to be established and maintained (a) the Yield Maintenance
Account, into which Yield Maintenance Payments received by the Securities
Administrator pursuant to the Yield Maintenance Agreement shall be
deposited for
the benefit of the LIBOR Certificates and the Class X Certificates
as provided
in Section 5.01 and (b) the Collateral Account, into which funds required
to be
held pursuant to the Credit Support Annex and received by the Securities
Administrator pursuant to the Credit Support Annex shall be deposited.
Amounts
on deposit in the Yield Maintenance Account shall not be invested
and shall not
be held in an interest-bearing account.
The
Securities Administrator shall deposit all amounts received from the
Yield
Maintenance Provider under the Yield Maintenance Agreement into the Yield
Maintenance Account immediately upon receipt.
To
the
extent that it constitutes a “reserve fund” for purposes of the REMIC
Provisions, the Yield Maintenance Account established hereunder shall
be an
“outside reserve fund” as defined in Treasury Regulation 1.860G-2(h), and in
that regard (i) such fund shall be an outside reserve fund and not an
asset of
any REMIC, (ii) such fund shall be owned for federal tax purposes by
the Holders
of the Class X Certificates, and the Holders of the Class X Certificates
shall
report all amounts of income, reduction, gain or loss accruing therefrom
and
(iii) amounts transferred by the REMIC to the fund shall be treated as
distributed by the REMIC to the Holders of the Class X
Certificates.
The
Securities Administrator shall terminate the Yield Maintenance Agreement
upon
the occurrence of an event of default or termination event under the
related
Yield Maintenance Agreement of which a Responsible Officer of the Securities
Administrator has actual knowledge. In the event that a Yield Maintenance
Agreement is canceled or otherwise terminated for any reason (other than
the
exhaustion of the interest rate protection provided thereby), the Securities
Administrator shall, at the direction of Certificateholders evidencing
Voting
Rights representing not less than 50% of the LIBOR Certificates, and
to the
extent a replacement contract is available (from a counterparty designated
by
the Depositor and acceptable to Certificateholders evidencing Voting
Rights
representing not less than 50% of the LIBOR Certificates), execute a
replacement
contract comparable to such Yield Maintenance Agreement providing interest
rate
protection which is equal to the then-existing protection provided by
such Yield
Maintenance Agreement as certified to the Securities Administrator by
the
Depositor; provided,
however,
that
the cost of any such replacement contract providing the same interest
rate
protection may be reduced to a level such that the cost of such replacement
contract shall not exceed the amount of any early termination payment
received
from the Yield Maintenance Provider.
89
Funds
required to be held pursuant to the Credit Support Annex shall be
deposited into
the Collateral Account. Funds posted by the Yield Maintenance Provider
(or its
credit support provider) in the Collateral Account shall be invested
in
Permitted Investments. Any interest earnings on such amounts shall
be remitted
to the Yield Maintenance Provider pursuant to the terms of the credit
support
annex to the Yield Maintenance Agreement. The Securities Administrator
shall not
be liable for any losses incurred on such investments. On the same
Distribution
Date as to which a shortfall exists with respect to a Yield Maintenance
Payment
Amount owed by the Yield Maintenance Provider as a result of its
failure to make
payments pursuant to the Yield Maintenance Agreement, amounts necessary
to cover
such shortfall shall be removed from the Collateral Account, remitted
to the
Yield Maintenance Account and distributed as all or a portion of
such Yield
Maintenance Payment Amount pursuant to Section 5.01(a)(iii). Any
amounts on
deposit in the Collateral Account required to be returned to the
Yield
Maintenance Provider (or its credit support provider) as a result
of (i) the
termination of the Yield Maintenance Agreement, (ii) the procurement
of a
guarantor, (iii) the reinstatement of required ratings or (iv) otherwise
pursuant to the Yield Maintenance Agreement, shall be released directly
to the
Yield Maintenance Provider pursuant to the terms of the credit support
annex to
the Yield Maintenance Agreement.
Upon
the
earlier of the Distribution Date in February 2016 and
the
termination of the Trust Fund, the Yield Maintenance Account shall
be
terminated. Upon the earlier of the Distribution Date in February
2016 and the
termination of the Trust Fund, the Collateral Account shall be terminated
and
any amounts remaining in the Collateral Account shall be distributed
as required
pursuant to the terms of the Credit Support Annex.
In
the
event that the Yield Maintenance Provider fails to perform any of
its
obligations under the Yield Maintenance Agreement (including, without
limitation, its obligations to make any payment or transfer collateral),
or
breaches any of its representations and warranties under the Yield
Maintenance
Agreement or in the event that an Event of Default, Termination Event,
or
Additional Termination Event occurs (as such terms are defined in
the Yield
Maintenance Agreement), the Securities Administrator, on behalf of
the Trust
Fund, shall (upon a Responsible Officer of the Securities Administrator
receiving notice or becoming aware of the occurrence thereof), no
later than the
next Business Day following such failure, breach or occurrence, notify
the Yield
Maintenance Provider and give any notice of such failure and make
any demand for
payment pursuant to the Yield Maintenance Agreement. In the event
that the Yield
Maintenance Provider’s obligations under the Yield Maintenance Agreement are at
any time guaranteed by a third party, then to the extent that the
Yield
Maintenance Provider fails to make any payment or delivery required
under terms
of the Yield Maintenance Agreement, the Securities Administrator,
on behalf of
the Trust Fund, shall (upon a Responsible Officer of the Securities
Administrator receiving notice or becoming aware of the occurrence
thereof), no
later than the next Business Day following such failure, demand that
such
guarantor make any and all payments then required to be made by the
applicable
guarantor.
ARTICLE
V
FLOW
OF FUNDS
SECTION
5.01. Distributions.
(a) On
each
Distribution Date and after making any withdrawals from the Distribution
Account
pursuant to Section 4.03(a), the Securities Administrator, as Paying
Agent,
shall withdraw funds on deposit in the Distribution Account to the extent
of
Available Funds for such Distribution Date based on the Distribution
Date
Statement provided by the Securities Administrator and, solely with respect
to
distributions to be made pursuant to Section 5.01(a)(iii), shall withdraw
from the Yield Maintenance Account the Yield Maintenance Distributable
Amount
for such Distribution Date, and shall withdraw from the Basis Risk Reserve
Fund
make the following disbursements and transfers as set forth below:
(i) the
Available Funds shall be distributed on each Distribution Date (other
than on
the Distribution Date following the optional purchase of the Mortgage
Loans by
the Terminator pursuant to Section 10.01(a) in the following order of
priority:
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(A)
|
for
deposit in the Final Maturity Reserve Account, the Final Maturity
Reserve
Amount, if any, for that Distribution
Date;
|
|
(B)
|
to
the Class A-R, Class A and Class X Certificates, the related
Current
Interest for that date, pro
rata,
based on the Current Interest to which each such Class is entitled;
provided,
however,
that on each Distribution Date, the Current Interest for the
Class X
Certificates up to the Required Reserve Fund Deposit shall
be deposited in
the Basis Risk Reserve Fund and shall not be distributed to
the Class X
Certificates;
|
|
(C)
|
an
amount equal to the Senior Principal Distribution Amount for
that date, as
follows, concurrently:
|
(i)
first,
to the
Class A-R Certificate, until the Class Principal Balance of such Class
is
reduced to zero; and
(ii) second,
to the
Class A Certificates, until the Class Principal Balance of such Class
is reduced
to zero;
90
(ii) the
Available Funds for remaining after giving effect to the distributions
specified
in subsection (i) above shall be distributed to the Certificateholders
in the
following order of priority:
|
(A)
|
to
the Class B-1 Certificates, the related Current Interest for
that
date;
|
|
(B)
|
to
the Class B-1 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to
zero;
|
|
(C)
|
to
the Class B-2 Certificates, the related Current Interest for
that
date;
|
|
(D)
|
to
the Class B-2 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to
zero;
|
|
(E)
|
to
the Class B-3 Certificates, the related Current Interest for
that
date;
|
|
(F)
|
to
the Class B-3 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to
zero;
|
|
(G)
|
to
the Class B-4 Certificates, the related Current Interest for
that
date;
|
|
(H)
|
to
the Class B-4 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to
zero;
|
|
(I)
|
to
the Class B-5 Certificates, the related Current Interest for
that
date;
|
|
(J)
|
to
the Class B-5 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to
zero;
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|
(K)
|
to
the Class B-6 Certificates, the related Current Interest for
that date;
|
|
(L)
|
to
the Class B-6 Certificates, an amount allocable to principal
equal to
their Pro Rata Share for such Distribution Date, until the
Class Principal
Balance of such Class is reduced to zero;
and
|
91
|
(M)
|
to
the Holder of the Class A-R Certificate, any Available Funds,
other than
any portion thereof in respect of Premium Proceeds, then
remaining;
|
(iii) first,
from
the Yield Maintenance Account, and second,
from
(a)
the Basis Risk Reserve Fund, to the Class A, Class B-1, Class B-2 and
Class B-3
Certificates, sequentially, in that order, any related Basis Risk Shortfall
for
each such Class and such Distribution Date and then, to the Class X
Certificates;
(iv) the
Available Funds remaining after giving effect to the distributions specified
in
subsections (i) through (iii) above then remaining, will be distributed
to the
Holder of the Class A-R Certificate.
On
the
Distribution Date following the optional purchase of the Mortgage Loans
by the
Master Servicer pursuant to Section 10.01(a), Available Funds shall be
applied
in the amounts and in the order specified above, except that no amounts
will
distributed pursuant to Section 5.01(a)(iv) above and any Premium Proceeds
shall be distributed to the Class X Certificates.
(b) Amounts
to be paid to the Holders of a Class of Certificates shall be payable
with
respect to all Certificates of that Class, pro
rata,
based
on the Certificate Principal Balance or Certificate Notional Balance,
as
applicable, of each Certificate of that Class.
(c) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(ii) above, if
with
respect to any Class of Subordinate Certificates on any Distribution
Date the
sum of the related Class Subordination Percentages of such Class and
of all
other Classes of Subordinate Certificates which have a higher numerical
Class
designation than such Class (the “Applicable Credit Support Percentage”) is less
than the Original Applicable Credit Support Percentage for such Class,
no
distribution of Principal Prepayments will be made to any such Classes
(the
“Restricted Classes”) and the amount of such Principal Prepayment otherwise
distributable to the Restricted Classes shall be distributed to any Classes
of
Subordinate Certificates having lower numerical Class designations than
such
Class, pro
rata,
based
on the Class Principal Balances of the respective Classes immediately
prior to
such Distribution Date and shall be distributed in the sequential order
provided
in Section 5.01(a)(ii) above.
(d) Distributions
on Physical Certificates.
The
Paying Agent shall make distributions in respect of a Distribution Date
to each
Certificateholder of record on the related Record Date (other than as
provided
in Section 10.01 hereof respecting the final distribution), in the case
of
Certificateholders of the Physical Certificates, by check or money order
mailed
to such Certificateholder at the address appearing in the Certificate
Register,
or by wire transfer. Distributions among Certificateholders of a Class
shall be
made in proportion to the Percentage Interests evidenced by the Certificates
of
that Class held by such Certificateholders.
(e) Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to
the
Depository, which shall credit the amount of such distribution to the
accounts
of its Depository Participants in accordance with its normal procedures.
Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing
funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository
and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Paying Agent, the Depositor or
the Seller
shall have any responsibility therefor.
92
(f) Distributions
from Final Maturity Reserve Account.
On the
Final Maturity Reserve Termination Date, the Securities Administrator
shall
distribute the funds on deposit in the Final Maturity Reserve Account
on such
date in the following order of priority:
(i) to
the
Class A-R and Class A Certificates, sequentially, in that order, after
giving
effect to principal distributions on such Distribution Date pursuant
to Sections
5.01(a)(i)(C) above, in reduction of their respective Class Principal
Balances,
until the Class Principal Balance of each such class has been reduced
to
zero;
(ii) to
the
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, sequentially, in that order, after giving effect to principal
distributions on such Distribution Date pursuant to Sections 5.01(a)(iii)
above,
in reduction of their respective Class Principal Balances, until the
Class
Principal Balance of each such class has been reduced to zero;
(iii) to
the
Class A and Class X Certificates,
pro
rata,
any
Current Interest for such Classes remaining unpaid on such Distribution
Date;
(iv) to
the
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates, sequentially, in that order, any Current Interest for each
such
Class remaining unpaid on such Distribution Date; and
(v) to
the
remaining Final Maturity Reserve Amounts after payment pursuant to clauses
(i)
through (iv) above, to the Class X Certificates.
(g) Distributions
from Yield Maintenance Account.
On each
Distribution Date, the Securities Administrator shall withdraw from the
Yield
Maintenance Account the Yield Maintenance Distributable Amount with respect
to
the Yield Maintenance Agreement then on deposit therein and distribute
on such
Distribution Date such amounts in accordance with the priority set forth
in
Section 5.01(a)(iii).
(h) Distributions
on the Class P Certificates.
On each
Distribution Date, the Securities Administrator shall distribute the
Class P
Distributable Amount to the Holders of the Class P Certificates.
93
SECTION
5.02. [Reserved].
SECTION
5.03. Allocation
of Realized Losses.
(a) On
or
prior to each Distribution Date, the Securities Administrator shall aggregate
the loan-level information provided by the Master Servicer with respect
to the
total amount of Realized Losses, if any, with respect to the Mortgage
Loans for
the related Distribution Date and include such information in the Distribution
Date Statement.
(b) On
each
Distribution Date, Realized Losses that occurred during the related prepayment
period shall be allocated as follows:
first,
to the
Subordinate Certificates in reverse order of their respective numerical
Class
designations (beginning with the Class of Subordinate Certificates with
the
highest numerical Class designation) until the Class Principal Balance
of each
such Class is reduced to zero; and
second,
to the
Class A Certificates, until the Class Principal Balance of such Class
is reduced
to zero.
(c) The
Class
Principal Balance of the Class of Subordinate Certificates then outstanding
with
the highest numerical Class designation shall be reduced on each Distribution
Date by the amount, if any, by which the aggregate of the Class Principal
Balances of all outstanding Classes of Certificates (after giving effect
to the
distribution of principal and the allocation of Realized Losses on such
Distribution Date) exceeds the aggregate of the Stated Principal Balances
of all
the Mortgage Loans for the following Distribution Date.
(d) Any
Realized Loss allocated to a Class of Certificates or any reduction in
the Class
Principal Balance of a Class of Certificates pursuant to Section 5.03(b)
or (c)
shall be allocated among the Certificates of such Class, pro
rata,
in
proportion to their respective Certificate Principal Balances.
(e) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b)
or
(c) shall be accomplished by reducing the Certificate Principal Balance
thereof
immediately following the distributions made on the related Distribution
Date in
accordance with the definition of “Certificate Principal Balance.”
SECTION
5.04. Statements.
(a) On
each
Distribution Date, the Securities Administrator shall make available
to each
Certificateholder, the Seller, the Master Servicer, the Trustee and each
Rating
Agency, a statement based, as applicable, on loan-level information obtained
from the Master Servicer and the Servicers, (the “Distribution Date Statement”)
as to the distributions to be made or made, as applicable, on such Distribution
Date. The Distribution Date Statement shall include the following, in
each case,
with respect to such Distribution Date:
94
(i) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders
of each
Class of Certificates allocable to interest;
(iii) the
Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage
and
Subordinate Prepayment Percentage for the following Distribution
Date;
(iv) the
aggregate amount of Servicing Fees, Credit Risk Management Fees and Master
Servicing Fees for the related Due Period;
(v) the
aggregate amount of Advances for the related Due Period and the amount
of
unreimbursed Advances;
(vi) weighted
average remaining term to maturity, weighted average life and weighted
average
Loan Rate of the related Mortgage Loans as of the related Due Date;
(vii) the
Net
WAC and applicable Net WAC Cap at the Close of Business at the end of
the
related Due Period;
(viii) the
aggregate Principal Balance of the Six-Month LIBOR Indexed Mortgage Loans
at the
Close of Business at the end of the related Due Period;
(ix) the
amount of fees, expenses or indemnification amounts paid by the Trust
Fund with
an identification of the general purpose of such amounts and the party
receiving
such amounts;
(x) the
aggregate Prepayment Premium Amounts for the related Prepayment
Period;
(xi) the
number and aggregate unpaid principal balance of Mortgage Loans (a) 30 to
59 days Delinquent, (b) 60 to 89 days Delinquent, (c) 90 or more days
Delinquent, (d) as to which foreclosure proceedings have been commenced
and (e)
in bankruptcy, in each case as of the close of business on the last day
of the
preceding calendar month, in each case, using the MBA method;
(xii) the
book
value (if available) of any REO Property as of the Close of Business
on the last
Business Day of the calendar month preceding the Distribution Date, and,
cumulatively, the total number and cumulative principal balance of all
REO
Properties as of the Close of Business of the last day of the preceding
Due
Period;
(xiii) the
aggregate amount of Principal Prepayments made during the related Prepayment
Period;
(xiv) the
aggregate amount of Realized Losses incurred during the related Due Period
and
the cumulative amount of Realized Losses and the amount of Realized Losses,
if
any, allocated to each Class of Certificates;
95
(xv) the
Class
Principal Balance or Class Notional Balance, as applicable, of each Class
of
Certificates after giving effect to any distributions made thereon, on
such
Distribution Date after giving effect to any distributions made thereon,
on such
Distribution Date;
(xvi) the
Current Interest in respect of each Class of Certificates, for such Distribution
Date and the portion thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such Distribution
Date;
(xvii) the
aggregate amount of any Net Interest Shortfalls for such Distribution
Date after
giving effect to any distributions made thereon, on such Distribution
Date;
(xviii) the
Available Funds;
(xix) the
Pass-Through Rate for each Class of Certificates for such Distribution
Date;
(xx) the
aggregate Principal Balance of Mortgage Loans purchased hereunder by
the Seller
during the related Due Period, and indicating the relevant section of
the
Servicing Agreement, or the Section of this Agreement, as applicable,
requiring
or allowing the purchase of each such Mortgage Loan;
(xxi) current
and cumulative Recoveries for such Distribution Date;
(xxii) the
amount of any Basis Risk Shortfall, if any, for each Class after giving
effect
to any distributions made thereon, on such Distribution Date
(xxiii) the
Final
Maturity Reserve Amount deposited in the Final Maturity Reserve Account,
and, on
the Final Maturity Reserve Termination Date, the amount distributed from
the
Final Maturity Reserve Account to each Class of Certificates;
(xxiv) the
payments, if any, made from the Yield Maintenance Account and the amount
distributed to the LIBOR Certificates from such payments; and
(xxv) the
amount of any Class P Distributable Amount for such Distribution
Date.
The
Securities Administrator shall make the Distribution Date Statement (and,
at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the other parties
to this
Agreement via the Securities Administrator’s internet website. The Securities
Administrator’s internet website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at (000) 000-0000. Parties that are unable
to use the above distribution option are entitled to have a paper copy
mailed to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the
way such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator
shall
provide timely and adequate notification to all parties regarding any
such
change.
96
In
the
case of information furnished pursuant to subclauses (i) and (ii) above,
the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the
Cut-Off
Date.
In
addition to the information listed above, such Distribution Date Statement
or
the report on Form 10-D for such Distribution Date shall also include
any other
information required by Item 1121 (§ 229.1121) of Regulation AB.
(b) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon written request, furnish to each Person who
at any
time during the calendar year was a Certificateholder of a Regular Certificate,
if requested in writing by such Person, such information as is reasonably
necessary to provide to such Person a statement containing the information
set
forth in subclauses (i) and (ii) above, aggregated for such calendar
year or
applicable portion thereof during which such Person was a Certificateholder
and
such other customary information which a Certificateholder reasonably
requests
to prepare its tax returns. Such obligation of the Securities Administrator
shall be deemed to have been satisfied to the extent that substantially
comparable information shall be prepared and furnished by the Securities
Administrator to Certificateholders pursuant to any requirements of the
Code as
are in force from time to time.
(c) On
each
Distribution Date, the Securities Administrator shall supply an electronic
tape
to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic
tape
to Loan Performance and Intex Solutions in a format acceptable to Loan
Performance and Intex Solutions on a monthly basis.
SECTION
5.05. Remittance
Reports; Advances.
(a) No
later
than the second Business Day following each Determination Date, the Master
Servicer shall deliver to the Securities Administrator by telecopy or
electronic
mail (or by such other means as the Master Servicer and the Securities
Administrator may agree from time to time) the Remittance Report with
respect to
the related Distribution Date. Not later than the Close of Business New
York
time three Business Days prior to the related Distribution Date, the
Master
Servicer shall deliver or cause to be delivered to the Securities Administrator
in addition to the information provided on the Remittance Report, such
other
loan-level information reasonably available to it with respect to the
Mortgage
Loans as the Securities Administrator may reasonably require to perform
the
calculations necessary to make the distributions contemplated by Section
5.01.
(b) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date
and is
delinquent, other than as a result of application of the Relief Act,
and for
which the related Servicer was required to make an advance pursuant to
the
related Servicing Agreement exceeds the amount deposited in the Distribution
Account which will be used for an advance with respect to such Mortgage
Loan,
the Master Servicer will deposit in the Distribution Account not later
than the
Business Day immediately preceding the related Distribution Date an amount
equal
to such deficiency, net of the Servicing Fee and the Master Servicing
Fee, for
such Mortgage Loan except to the extent the Master Servicer determines
any such
Advance to be Nonrecoverable from Liquidation Proceeds, Insurance Proceeds
or
future payments on the Mortgage Loan for which such Advance was made.
Subject to
the foregoing, the Master Servicer shall continue to make such Advances
through
the date that such Servicer is required to do so under its Servicing
Agreement.
If the Master Servicer determines that an Advance is Nonrecoverable,
it shall,
on or prior to the related Distribution Date, present an Officer’s Certificate
to the Securities Administrator and the Trustee (i) stating that the
Master
Servicer elects not to make a Advance in a stated amount and (ii) detailing
the
reason it deems the advance to be Nonrecoverable.
97
SECTION
5.06. Compensating
Interest Payments.
The
amount of the Master Servicing Fee payable to the Master Servicer in
respect of
any Distribution Date shall be reduced (but not below zero) by the amount
of any
Compensating Interest Payment for such Distribution Date, but only to
the extent
that Interest Shortfalls relating to such Distribution Date are required
to be
paid but are not actually paid by the Servicers on the applicable Servicer
Remittance Date. Such amount shall not be treated as an Advance and shall
not be
reimbursable to the Master Servicer.
SECTION
5.07. Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain
in its
name, in trust for the benefit of the Holders of the LIBOR Certificates,
the
Basis Risk Reserve Fund.
The
Basis
Risk Reserve Fund shall be an Eligible Account, and funds on deposit
therein
shall be held separate and apart from, and shall not be commingled with,
any
other moneys, including, without limitation, other moneys of the Securities
Administrator held pursuant to this Agreement. For the convenience of
the
Securities Administrator, the Basis Risk Reserve Fund may be a separate
subaccount of a single account established by the Securities Administrator.
The
Basis Risk Reserve Fund shall be an asset of any REMIC established
hereby.
(b) On
each
Distribution Date, the Current Interest that would otherwise be distributable
with respect to the Class X Certificates shall instead be deposited in
the Basis
Risk Reserve Fund to the extent of the Required Reserve Fund
Deposit.
(c) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect
to any
class of LIBOR Certificates, the Securities Administrator, as Paying
Agent,
shall withdraw from the Basis Reserve Fund the amount on deposit therein
and
distribute it pursuant to Section 5.01(a)(iii).
(d) Funds
in
the Basis Risk Reserve Fund shall be invested in Permitted Investments.
Any
earnings on amounts in the Basis Risk Reserve Fund shall be for the benefit
of
the Class X Certificateholders. The Class X Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes
and the
Holders thereof shall direct the Securities Administrator, in writing,
as to
investment of amounts on deposit therein. The Class X Certificateholder(s)
shall
be liable for any losses incurred on such investments. In the absence
of written
instructions from the Class X Certificateholder as to investment of funds
on
deposit in the Basis Risk Reserve Fund, such funds shall be invested
in money
market funds as specified by the Depositor and as described in clause
(vi) of
the definition of Permitted Investments in Article I. For all Federal
income tax
purposes, amounts transferred by the Upper-Tier REMIC to the Basis Risk
Reserve
Fund shall be treated as amounts distributed by the Upper-Tier REMIC
to the
Class X Certificateholders.
98
(e) Except
as
provided expressly hereunder, the Securities Administrator shall have
no
obligation to invest and reinvest cash held in the Basis Risk Reserve
Fund in
the absence of timely and specific written investment direction from
the
Depositor. In no event shall the Securities Administrator be liable for
the
selection of investments or for investment losses incurred thereon. The
Securities Administrator shall have no liability in respect of losses
incurred
as a result of the liquidation of any investment prior to its stated
maturity or
the failure of the Depositor to provide timely written investment
direction.
(f) The
Securities Administrator or its Affiliates are permitted to receive additional
compensation that could be deemed to be in the Securities Administrator’s
economic self interest for (i) serving as investment advisor, administrator,
shareholder servicing agent, custodian or sub-custodian with respect
to certain
Permitted Investments, (ii) using Affiliates to effect transactions in
certain
Permitted Investments and (iii) effecting transactions in certain Permitted
Investments. The Securities Administrator does not guarantee the performance
of
any Permitted Investment.
(g) Upon
termination of the Trust Fund any amounts remaining in the Basis Risk
Reserve
Fund shall be distributed to the Holders of the Class X
Certificates.
SECTION
5.08. Recoveries.
(a) With
respect to any Class of Certificates to which a Realized Loss has been
allocated
(including any such Class for which the related Class Principal Balance
has been
reduced to zero), the Class Principal Balance of such Class will be increased,
up to the amount of related Recoveries for such Distribution Date as
follows:
(i) first,
the Class Principal Balance of the Class A Certificates will be increased
up to
the amount by which Net Realized Losses previously allocated to such
Class
exceeds the amount of Recoveries for such Distribution Date previously
distributed to such Class, and
(ii) second,
the Class Principal Balance of each Class of Subordinate Certificates
will be
increased in order of seniority, up to the amount by which Net Realized
Losses
previously allocated to each such Class exceeds the amount of Recoveries
for
such Distribution Date previously distributed to such Class.
99
(b) Any
increase to the Class Principal Balance of a Class of Certificates shall
increase the Certificate Principal Balance of each Certificate of the
related
Class pro
rata
in
accordance with each Percentage Interest.
SECTION
5.09. Final
Maturity Reserve Trust.
(a) The
Final
Maturity Reserve Trust is hereby established as a separate trust, the
corpus of
which shall be held by the Securities Administrator, in trust, for the
benefit
of the holders of the LIBOR Certificates. The Securities Administrator
shall
establish an account (the “Final Maturity Reserve Account”). The Final Maturity
Reserve Account shall be an Eligible Account, and funds on deposit therein
shall
be held separate and apart from, and shall not be commingled with, any
other
moneys, including, without limitation, other moneys of the Securities
Administrator held pursuant to this Agreement. Notwithstanding anything
herein
to the contrary, the Securities Administrator will only establish the
Final
Maturity Reserve Account if there is any Final Maturity Reserve Amount
to be
deposited therein.
(b) The
Securities Administrator shall deposit into the Final Maturity Reserve
Account
any Final Maturity Reserve Amounts pursuant to Section 5.01(a)(i)(A).
The
Securities Administrator shall distribute the funds in the Final Maturity
Reserve Account pursuant to Sections 5.01(f).
(c) Funds
in
the Final Maturity Reserve Account shall be invested in Permitted Investments
at
the written direction of the Holders of the Class X Certificates. Any
earnings
on such amounts shall be distributed pursuant to Sections 5.01(f). The
Class X
Certificates shall evidence ownership of the Final Maturity Reserve Trust
for
federal income tax purposes and the Holder thereof shall direct the Securities
Administrator, in writing, as to investment of amounts on deposit therein.
The
Class X Certificateholders shall be liable for any losses incurred on
such
investments. In the absence of written instructions from the Class X
Certificateholders as to investment of funds on deposit in the Final
Maturity
Reserve Account, such funds shall remain uninvested.
(d) Upon
termination of the Final Maturity Reserve Trust, any amounts remaining
in the
Final Maturity Reserve Account shall be distributed pursuant to the priorities
in Sections 5.01(f).
(e) For
federal income tax purposes, any Certificateholder that receives a principal
payment from the Final Maturity Reserve Trust shall be treated as selling
a
portion of its Certificate to the Class X Certificateholder and as having
received the amount of the principal payment from the Class X Certificateholder
as the proceeds of the sale. The portion of the Certificate that is treated
as
having been sold shall equal the amount of the corresponding reduction
in the
Class Principal Balance of such Certificate. Principal payments received
from
the Final Maturity Reserve Trust shall not be treated as distributions
from any
REMIC created hereby. All principal distributions from the Final Maturity
Reserve Account shall be accounted for hereunder in accordance with this
Section
5.09(e).
100
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
The
Certificates shall be substantially in the form annexed hereto as Exhibit
A-1
through E. Each of the Certificates shall, on original issue, be executed
by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar upon the written order of the Depositor concurrently with the
sale and
assignment to the Trustee of the Trust Fund. Each Class of the Regular
Certificates shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination
of $25,000
and integral dollar multiples of $1 in excess thereof, and in the case
of the
Class X and Class A-R Certificates, $100,000 and integral dollar multiples
of $1
in excess thereof; ; provided,
however,
that
the Regular Certificates shall only be sold to initial investors in minimum
total investment amounts of $100,000. The Class P Certificates shall
be issued
in a minimum Percentage Interest of 5% and in integral percentage of
multiples
of 1% in excess thereof. The Class A-R Certificates are issuable only
in a
Percentage Interest of 100% and each shall be issued as a single certificate
in
physical form.
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Securities Administrator by a Responsible
Officer.
Certificates bearing the manual or facsimile signatures of individuals
who were,
at the time when such signatures were affixed, authorized to sign on
behalf of
the Securities Administrator shall be binding, notwithstanding that such
individuals or any of them have ceased to be so authorized prior to the
authentication and delivery of such Certificates or did not hold such
offices at
the date of such Certificate. Each Certificate shall, on original issue,
be
authenticated by the Certificate Registrar upon the order of the Depositor.
No
Certificate shall be entitled to any benefit under this Agreement or
be valid
for any purpose, unless such Certificate shall have been manually authenticated
by the Certificate Registrar substantially in the form provided for herein,
and
such authentication upon any Certificate shall be conclusive evidence,
and the
only evidence, that such Certificate has been duly authenticated and
delivered
hereunder. All Certificates shall be dated the date of their authentication.
At
any time and from time to time after the execution and delivery of this
Agreement, the Depositor may deliver Certificates executed by the Securities
Administrator to the Certificate Registrar for authentication and the
Certificate Registrar shall authenticate and deliver such Certificates
as
provided in this Agreement and not otherwise. Subject to Section 6.02(c),
the
Regular Certificates shall be Book-Entry Certificates. The Class P and
Class A-R
Certificates shall be Physical Certificates.
The
Class
B-4, Class B-5 and Class B-6 Certificates shall be offered and sold either
(i)
to Qualified Institutional Buyers, and shall be issued initially in the
form of
one or more permanent global Certificates in definitive, fully registered
form
with the applicable legends set forth in Exhibit C (each, a “Restricted Global
Security”) or (ii) outside the United States in reliance on Regulation S under
the 1933 Act, and shall be issued initially in the form of one or more
permanent
global Certificates in definitive, fully registered form without interest
coupons with the applicable legends set forth in Exhibit C hereto (each,
a
“Regulation S Global Security”), which shall be deposited on behalf of the
subscribers for such Certificates represented thereby with the Securities
Administrator, as custodian for DTC and registered in the name of a nominee
of
DTC, duly executed by the Securities Administrator and authenticated
by the
Certificate Registrar as hereinafter provided. The aggregate principal
amounts
of the Restricted Global Securities or Regulation S Global Securities,
as
applicable, may from time to time be increased or decreased by adjustments
made
on the records of the Certificate Registrar and DTC or its nominee, as
the case
may be, as hereinafter provided.
101
The
Class
P Certificates shall be offered and sold either (i) to Qualified Institutional
Buyers, and shall be issued initially in the form of one or more permanent
global Certificates in definitive, fully registered form with the applicable
legends set forth in Exhibit D or (ii) outside the United States in reliance
on
Regulation S under the 1933 Act, and shall be issued initially in the
form of
one or more permanent global Certificates in definitive, fully registered
form
without interest coupons with the applicable legends set forth in Exhibit
D-2
which shall be registered in the name Greenwich Capital Markets, Inc.,
duly
executed by the Securities Administrator and authenticated by the Certificate
Registrar as hereinafter provided. The aggregate principal amount of
the Class P
Certificates may from time to time be increased or decreased by adjustments
made
on the records of the Certificate Registrar as hereinafter
provided.
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept a Certificate Register in
which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Securities Administrator
is hereby appointed, and the Securities Administrator hereby accepts
its
appointment as, initial Certificate Registrar on behalf of the Trustee,
for the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust
Office of the Certificate Registrar maintained for such purpose pursuant
to the
foregoing paragraph, the Securities Administrator on behalf of the Trust
shall
execute, and the Certificate Registrar shall authenticate and deliver,
in the
name of the designated transferee or transferees, one or more new Certificates
of the same aggregate Percentage Interest.
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any
such office
or agency. Whenever any Certificates are so surrendered for exchange,
the
Securities Administrator shall execute on behalf of the Trust, and the
Certificate Registrar shall authenticate and deliver the Certificates
which the
Certificateholder making the exchange is entitled to receive. Every Certificate
presented or surrendered for registration of transfer or exchange shall
(if so
required by the Certificate Registrar) be duly endorsed by, or be accompanied
by
a written instrument of transfer satisfactory to the Certificate Registrar
duly
executed by, the Holder thereof or his attorney duly authorized in
writing.
102
(b) Except
as
provided in paragraph (c) or (d) below, the Book-Entry Certificates shall
at all
times remain registered in the name of the Depository or its nominee
and at all
times: (i) registration of such Certificates may not be transferred by the
Securities Administrator or the Certificate Registrar except to another
Depository; (ii) the Depository shall maintain book-entry records with
respect
to the Certificate Owners and with respect to ownership and transfers
of such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules
established
by the Depository; (iv) the Depository may collect its usual and customary
fees,
charges and expenses from its Depository Participants; (v) the Certificate
Registrar, the Paying Agent and the Trustee shall for all purposes deal
with the
Depository as representative of the Certificate Owners of such Certificates
for
purposes of exercising the rights of Holders under this Agreement, and
requests
and directions for and votes of such representative shall not be deemed
to be
inconsistent if they are made with respect to different Certificate Owners;
(vi)
the Trustee, the Paying Agent and the Certificate Registrar may rely
and shall
be fully protected in relying upon information furnished by the Depository
with
respect to its Depository Participants and furnished by the Depository
Participants with respect to indirect participating firms and Persons
shown on
the books of such indirect participating firms as direct or indirect
Certificate
Owners; and (vii) the direct participants of the Depository shall have no
rights under this Agreement under or with respect to any of the Certificates
held on their behalf by the Depository, and the Depository may be treated
by the
Trustee, the Paying Agent, the Certificate Registrar and their respective
agents, employees, officers and directors as the absolute owner of the
Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owners. Each Depository
Participant
shall only transfer Book-Entry Certificates of Certificate Owners that
it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute one or more Letter of Representations with the Depository or
take such
other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the
terms of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If
(x)
the Depository or the Depositor advises the Certificate Registrar in
writing
that the Depository is no longer willing or able to discharge properly
its
responsibilities as Depository and (y) the Certificate Registrar or the
Depositor is unable to locate a qualified successor, upon surrender to
the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Securities Administrator shall at the Seller’s expense execute on behalf of
the Trust and authenticate definitive, fully registered certificates
(the
“Definitive Certificates”). Neither the Depositor nor the Certificate Registrar
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Certificates, the Trustee, the Certificate
Registrar, the Paying Agent and the Depositor shall recognize the Holders
of the
Definitive Certificates as Certificateholders hereunder.
103
(d) No
transfer, sale, pledge or other disposition of any Private Certificate,
other
than a Private Certificate sold in an offshore transaction in reliance
on
Regulation S, shall be made unless such disposition is exempt from the
registration requirements of the 1933 Act, and any applicable state securities
laws or is made in accordance with the 1933 Act and laws. Any Private
Certificates sold to an “accredited investor” under Rule 501(a)(1), (2), (3) or
(7) under the 1933 Act shall be issued only in the form of one or more
Definitive Certificates and the records of the Certificate Registrar
(and solely
in the case of the Class B-4, Class B-5 and Class B-6 Certificates, DTC
or its
nominee) shall be adjusted to reflect the transfer of such Definitive
Certificates. In the event of any transfer of any Private Certificate
in the
form of a Definitive Certificate, (i) the transferee shall certify (A)
such
transfer is made to a Qualified Institutional Buyer in reliance upon
Rule 144A
(as evidenced by an investment letter delivered to the Certificate Registrar,
in
substantially the form attached hereto as Exhibit J-2) under the 1933
Act, or
(B) such transfer is made to an “accredited investor” under Rule 501(c)(1), (2),
(3) or (7) under the 1933 Act (as evidenced by an investment letter delivered
to
the Certificate Registrar, in substantially the form attached hereto
as Exhibit
J-1, and, if so required by the Certificate Registrar and the Depositor,
a
written Opinion of Counsel (which may be in-house counsel) acceptable
to and in
form and substance reasonably satisfactory to the Certificate Registrar
and the
Depositor, delivered to the Certificate Registrar and the Depositor stating
that
such transfer may be made pursuant to an exemption, including a description
of
the applicable exemption and the basis therefor, from the 1933 Act or
is being
made pursuant to the 1933 Act, which Opinion of Counsel shall not be
an expense
of the Trust, the Trustee, the Certificate Registrar, the Master Servicer,
the
Securities Administrator or the Depositor) or (ii) the Certificate Registrar
shall require the transferor to execute a transferor certificate and
the
transferee to execute an investment letter acceptable to and in form
and
substance reasonably satisfactory to the Depositor and the Certificate
Registrar
certifying to the Depositor and the Certificate Registrar the facts surrounding
such transfer, which investment letter shall not be an expense of the
Trust, the
Trustee, the Certificate Registrar, the Master Servicer, the Securities
Administrator or the Depositor. Each Holder of a Private Certificate
desiring to
effect such transfer shall, and does hereby agree to, indemnify the Trustee,
the
Certificate Registrar, the Securities Administrator, the Seller and the
Depositor against any liability that may result if the transfer is not
so exempt
or is not made in accordance with such federal and state laws.
In
the
case of a Class B-4, Class B-5 or Class B-6 Certificate that is a Book-Entry
Certificate, for purposes of the preceding paragraph, the representations
set
forth in the investment letter in clause (i) shall be deemed to have
been made
to the Certificate Registrar by the transferee’s acceptance of such Class B-4,
Class B-5 or Class B-6 Certificate that is also a Book-Entry Certificate
(or the
acceptance by a Certificate Owner of the beneficial interest in such
Certificate).
If
any
Certificate Owner that is required under this Section 6.02(d) to transfer
its
Class B-4, Class B-5 or Class B-6 Certificates that are Book-Entry Certificates
in the form of Definitive Certificates, (i) notifies the Certificate
Registrar of such transfer or exchange and (ii) transfers such Book-Entry
Certificates to the Certificate Registrar, in its capacity as such, through
the
book-entry facilities of the Depository, then the Certificate Registrar
shall
decrease the balance of such Book-Entry Certificates, or the Certificate
Registrar shall use reasonable efforts to cause the surrender to the
Certificate
Registrar of such Book-Entry Certificates by the Depository, and thereupon,
the
Securities Administrator, on behalf of the Trust, shall execute and the
Certificate Registrar shall authenticate and deliver to such Certificate
Owner
or its designee one or more Definitive Certificates in authorized denominations
and with a like aggregate Certificate Principal Balance.
104
Subject
to the provisions of this Section 6.02(d) governing registration of transfer
and
exchange Class B-4, Class B-5 or Class B-6 Certificates (i) held as
Definitive Certificates may be transferred in the form of Book-Entry
Certificates in reliance on Rule 144A (to one or more Qualified Institutional
Buyers) or Regulation S under the 1933 Act that are acquiring such Definitive
Certificates, their own accounts for or for the accounts of other Qualified
Institutional Buyers and (ii) held as Definitive Certificates by a
Qualified Institutional Buyer or an investor under Regulation S for its
own
account or for the account of another Qualified Institutional Buyer or
Regulation S investor may be exchanged for Book-Entry Certificates, in
each case
upon surrender of such Certificates for registration of transfer or exchange
at
the offices of the Certificate Registrar maintained for such purpose.
Whenever
any such Certificates are so surrendered for transfer or exchange, either
the
Certificate Registrar shall increase the balance of the related Book-Entry
Certificates, or the Securities Administrator on behalf of the Trust
shall
execute, and the Certificate Registrar shall authenticate and deliver,
the
Book-Entry Certificates for which such Certificates were transferred
or
exchanged, as necessary and appropriate. No Holder of any such Definitive
Certificates other than a Qualified Institutional Buyer or a Regulation
S
investor holding such Certificates for its own account or for the account
of
another Qualified Institutional Buyer or Regulation S investor may exchange
such
Certificates for Book-Entry Certificates. Further, any Certificate Owner
of such
Book-Entry Certificates other than any such Qualified Institutional Buyers
or
Regulation S investors shall notify the Certificate Registrar of its
status as
such and shall transfer such Book-Entry Certificate to the Certificate
Registrar, through the book-entry facilities of the Depository, whereupon,
and
also upon surrender to the Certificate Registrar of such Book-Entry Certificates
by the Depository, (which surrender the Certificate Registrar shall use
reasonable efforts to cause to occur), the Securities Administrator on
behalf of
the Trust shall execute, and the Certificate Registrar shall authenticate
and
deliver, to such Certificate Owner or such Certificate Owner’s nominee one or
more Definitive Certificates in authorized denominations and with a like
aggregate Certificate Principal Balance.
None
of
the Depositor, the Seller, the Securities Administrator, the Certificate
Registrar or the Trustee is obligated to register or qualify the Private
Certificates under the 1933 Act or any other securities laws or to take
any
action not otherwise required under this Agreement to permit the transfer
of
such Certificates without registration or qualification. Any Certificateholder
desiring to effect the transfer of a Private Certificate shall, and does
hereby
agree to, indemnify the Trustee, the Seller, the Securities Administrator,
the
Depositor and the Certificate Registrar against any liability that may
result if
the transfer is not so exempt or is not made in accordance with such
federal and
state laws.
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Certificate Registrar shall have
received
either (i) a representation from the transferee of such Certificate,
acceptable
to and in form and substance satisfactory to the Certificate Registrar
and the
Depositor (such requirement is satisfied only by the Certificate Registrar’s
receipt of a representation letter from the transferee substantially
in the form
of Exhibit I-1 or I-2, as applicable, hereto), to the effect that such
transferee is not an employee benefit plan subject to Section 406 of
ERISA or a
plan or arrangement subject to Section 4975 of the Code (a “Plan”), nor a person
acting on behalf of any such plan or arrangement nor using the assets
of any
such plan or arrangement to effect such transfer or (ii) if such Certificate
has
been the subject of an ERISA-Qualifying Underwriting, and the purchaser
is an
insurance company, a representation that the purchaser is an insurance
company
which is purchasing such Certificates with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the purchase and
holding of such Certificates are covered under Sections I and III of
PTCE 95-60
or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar,
which
Opinion of Counsel shall not be an expense of the Trustee, the Certificate
Registrar, the Master Servicer, the Securities Administrator, the Depositor
or
the Trust, addressed to the Certificate Registrar, to the effect that
the
purchase and holding of such ERISA-Restricted Certificate in the form
of a
Definitive Certificate will not result in a non-exempt prohibited transaction
under Section 406 of ERISA or Section 4975 of the Code and will not subject
the
Trustee, the Certificate Registrar, the Master Servicer, the Servicers,
the
Securities Administrator or the Depositor to any obligation in addition
to those
expressly undertaken in this Agreement or to any liability. Notwithstanding
anything else to the contrary herein, any purported transfer of an
ERISA-Restricted Certificate in the form of a Definitive Certificate
to an
employee benefit plan subject to ERISA or Section 4975 of the Code without
the
delivery to the Certificate Registrar of an Opinion of Counsel satisfactory
to
the Certificate Registrar as described above shall be void and of no
effect.
105
In
the
case of an ERISA-Restricted Certificate that is a Book-Entry Certificate,
for
purposes of clauses (i) or (ii) of the first sentence of the preceding
paragraph, such representations shall be deemed to have been made to
the
Certificate Registrar by the transferee’s acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance
by a
Certificate Owner of the beneficial interest in such Certificate).
No
transfer of an ERISA-Restricted Certificate prior to the termination
of the
Final Maturity Reserve Trust and the Yield Maintenance Agreement shall
be made
unless the Certificate Registrar shall have received a representation
letter
from the transferee of such Certificate, substantially in the form set
forth in
Exhibit I-2, to the effect that either (i) such transferee is neither
a Plan nor
a Person acting on behalf of any such Plan or using the assets of any
such Plan
to effect such transfer or (ii) the acquisition and holding of the
ERISA-Restricted Certificate are eligible for exemptive relief under
Prohibited
Transaction Class Exemption (“PTCE”) 84-14, XXXX 00-0, XXXX 00-00, XXXX 95-60 or
PTCE 96-23 or the non-fiduciary service provider exemption under Section
408(b)(17) of ERISA or some other applicable exemption. Notwithstanding
anything
else to the contrary herein, any purported transfer of an ERISA-Restricted
Certificate prior to the termination of the Final Maturity Reserve Trust
and the
Yield Maintenance Agreement to or on behalf of a Plan without the delivery
to
the Certificate Registrar of a representation letter as described above
shall be
void and of no effect. If the ERISA-Restricted Certificate is a Book-Entry
Certificate, the transferee will be deemed to have made a representation
as
provided in clause (i) or (ii) of this paragraph, as applicable.
106
If
any
ERISA-Restricted Certificate, or any interest therein, is acquired or
held in
violation of the provisions of the preceding paragraph, the next preceding
permitted beneficial owner will be treated as the beneficial owner of
that
Certificate, retroactive to the date of transfer to the purported beneficial
owner. Any purported beneficial owner whose acquisition or holding of
an
ERISA-Restricted Certificate, or interest therein, was effected in violation
of
the provisions of the preceding paragraph shall indemnify to the extent
permitted by law and hold harmless the Depositor and the Certificate
Registrar
from and against any and all liabilities, claims, costs or expenses incurred
by
such parties as a result of such acquisition or holding.
To
the
extent permitted under applicable law (including, but not limited to,
ERISA),
the Certificate Registrar shall be under no liability to any Person for
any
registration of transfer of any ERISA-Restricted Certificate that is
in fact not
permitted by this Section or for making any payments due on such Certificate
to
the Holder thereof or taking any other action with respect to such Holder
under
the provisions of this Agreement so long as the transfer was registered
by the
Certificate Registrar in accordance with the foregoing
requirements.
To
the
extent permitted under applicable law (including, but not limited to,
ERISA),
none of the Trustee, the Certificate Registrar or the Depositor shall
have any
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 6.02(d) or
for the
Paying Agent making any payments due on such Certificate to the Holder
thereof
or taking any other action with respect to such Holder under the provisions
of
this Agreement so long as the transfer was registered by the Certificate
Registrar in accordance with the foregoing requirements. In addition,
none of
the Trustee, the Certificate Registrar or the Depositor shall be required
to
monitor, determine or inquire as to compliance with the transfer restrictions
with respect to any ERISA-Restricted Certificate in the form of a Book-Entry
Certificate, and none of the Trustee, the Certificate Registrar or the
Depositor
shall have any liability for transfers of Book-Entry Certificates or
any
interests therein made in violation of the restrictions on transfer described
in
the Prospectus Supplement and this Agreement.
(e) Each
Person who has or who acquires any Ownership Interest in the Residual
Certificate shall be deemed by the acceptance or acquisition of such
Ownership
Interest to have agreed to be bound by the following provisions and to
have
irrevocably appointed the Depositor or its designee as its attorney-in-fact
to
negotiate the terms of any mandatory sale under clause (v) below and
to execute
all instruments of transfer and to do all other things necessary in connection
with any such sale, and the rights of each Person acquiring any Ownership
Interest in the Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in the Residual Certificate
shall be a Permitted Transferee who acquires such Ownership Interest
in the
Residual Certificate for its own account and not in the capacity as trustee,
nominee or agent for another Person and shall promptly notify the Certificate
Registrar and the Trustee of any change or impending change in its status
as
such a Permitted Transferee.
(ii) No
Ownership Interest in the Residual Certificate may be registered on the
Closing
Date and no Ownership Interest in the Residual Certificate may thereafter
be
transferred, and the Certificate Registrar shall not register the Transfer
of
the Residual Certificate unless, in addition to the certificates required
to be
delivered under subsection (d) above, the Trustee and the Certificate
Registrar
shall have been furnished with an affidavit (“Transfer Affidavit”) of the
initial owner of such Residual Certificate or proposed transferee of
the
Residual Certificate in the form attached hereto as Exhibit L.
107
(iii) In
connection with any proposed transfer of any Ownership Interest in the
Residual
Certificate, the Trustee and the Certificate Registrar shall as a condition
to
registration of the transfer, require delivery to them of a Transferor
Certificate in the form of Exhibit K hereto from the proposed transferor
to the
effect that the transferor (a) has no knowledge the proposed Transferee
is not a
Permitted Transferee acquiring an Ownership Interest in such Residual
Certificate for its own account and not in a capacity as trustee, nominee,
or
agent for another Person, and (b) has not undertaken the proposed transfer
in
whole or in part to impede the assessment or collection of tax.
(iv) Any
attempted or purported Transfer of any Ownership Interest in the Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If
any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of such Residual Certificate, then the prior Holder of
such
Residual Certificate that is a Permitted Transferee shall, upon discovery
that
the registration of Transfer of such Residual Certificate was not in
fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. None of the Trustee, the Certificate Registrar or the Depositor
shall have any liability to any Person for any registration of Transfer
of the
Residual Certificate that is in fact not permitted by this Section or
for the
Paying Agent making any distributions due on the Residual Certificate
to the
Holder thereof or taking any other action with respect to such Holder
win the
provisions of this Agreement so long as the Trustee and the Certificate
Registrar received the documents specified in clause (iii). The Certificate
Registrar shall be entitled to recover from any Holder of such Residual
Certificate that was in fact not a Permitted Transferee at the time such
distributions were made all distributions made on such Residual Certificate.
Any
such distributions so recovered by the Certificate Registrar shall be
distributed and delivered by the Certificate Registrar to the last Holder
of
such Residual Certificate that is a Permitted Transferee.
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in the
Residual Certificate in violation of the restrictions in this Section,
then the
Certificate Registrar shall have the right but not the obligation, without
notice to the Holder of such Residual Certificate or any other Person
having an
Ownership Interest therein, to notify the Depositor to arrange for the
sale of
such Residual Certificate. The proceeds of such sale, net of commissions
(which
may include commissions payable to the Depositor or its affiliates in
connection
with such sale), expenses and taxes due, if any, will be remitted by
the
Certificate Registrar to the previous Holder of such Residual Certificate
that
is a Permitted Transferee, except that in the event that the Certificate
Registrar determines that the Holder of such Residual Certificate may
be liable
for any amount due under this Section or any other provisions of this
Agreement,
the Certificate Registrar may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any
sale
under this clause (v) shall be determined in the sole discretion of the
Trustee
and the Certificate Registrar and they shall not be liable to any Person
having
an Ownership Interest in such Residual Certificate as a result of its
exercise
of such discretion.
108
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest
in the
Residual Certificate in violation of the restrictions in this Section,
then the
Securities Administrator upon receipt of reasonable compensation will
provide to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax
imposed
under Section 860E(e)(5) of the Code on transfers of residual interests
to
disqualified organizations.
The
foregoing provisions of this Section shall cease to apply to transfers
occurring
on or after the date on which there shall have been delivered to the
Certificate
Registrar, in form and substance satisfactory to the Certificate Registrar,
(i)
written notification from each Rating Agency that the removal of the
restrictions on Transfer set forth in this Section will not cause such
Rating
Agency to downgrade its ratings of the Certificates and (ii) an Opinion
of
Counsel to the effect that such removal will not cause the REMIC created
hereunder to fail to qualify as a REMIC.
(f) Notwithstanding
any provision to the contrary herein, so long as a Restricted Global
Security or
Regulation S Global Security, as applicable, representing any Class B-4,
Class
B-5 or Class B-6 Certificates remains outstanding and is held by or on
behalf of
the Depository, transfers of a Restricted Global Security or Regulation
S Global
Security, as applicable, representing the Certificates, in whole or in
part,
shall only be made in accordance with Section 6.01 and this Section
6.02(f).
(i) Subject
to clauses (ii) and (iii) of this Section 6.02(f), transfers of a Restricted
Global Security or Regulation S Global Security, as applicable, representing
any
Class B-4, Class B-5 or Class B-6 Certificates shall be limited to transfers
of
such a Restricted Global Security or Regulation S Global Security, as
applicable, in whole, but not in part, to nominees of the Depository
or to a
successor of the Depository or such successor’s nominee.
(ii) Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited
with
or on behalf of the Depository wishes at any time to exchange its interest
in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security
to a
Person who wishes to take delivery thereof in the form of an interest
in a
Regulation S Global Security, such holder, provided such holder is not
a U.S.
Person, may, subject to the rules and procedures of the Depository, exchange
or
cause the exchange of such interest for an equivalent beneficial interest
in the
Regulation S Global Security. Upon receipt by the Certificate Registrar
of (A)
instructions from the Depository directing the Certificate Registrar
to cause to
be credited a beneficial interest in a Regulation S Global Security in
an amount
equal to the beneficial interest in such Restricted Global Security to
be
exchanged but not less than the minimum denomination applicable to such
Certificateholders’ held through a Regulation S Global Security, (B) a written
order given in accordance with the Depository’s procedures containing
information regarding the participant account of the Depository and,
in the case
of a transfer pursuant to and in accordance with Regulation S, the Euroclear
or
Clearstream account to be credited with such increase and (C) a certificate
in
the form of Exhibit N-1 hereto given by the holder of such beneficial
interest
stating that the exchange or transfer of such interest has been made
in
compliance with the transfer restrictions applicable to the Global Securities,
including that the holder is not a U.S. Person and pursuant to and in
accordance
with Regulation S, the Certificate Registrar shall reduce the principal
amount
of the Restricted Global Security and increase the principal amount of
the
Regulation S Global Security by the aggregate principal amount of the
beneficial
interest in the Restricted Global Security to be exchanged, and shall
instruct
Euroclear or Clearstream, as applicable, concurrently with such reduction,
to
credit or cause to be credited to the account of the Person specified
in such
instructions a beneficial interest in the Regulation S Global Security
equal to
the reduction in the principal amount of the Restricted Global
Security.
109
(iii) Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of the Depository wishes at any time to transfer its interest
in
such Regulation S Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Restricted Global Security, such
holder
may, subject to the rules and procedures of the Depository, exchange
or cause
the exchange of such interest for an equivalent beneficial interest in
a
Restricted Global Security. Upon receipt by the Certificate Registrar
of (A)
instructions from the Depository directing the Certificate Registrar
to cause to
be credited a beneficial interest in a Restricted Global Security in
an amount
equal to the beneficial interest in such Regulation S Global Security
to be
exchanged but not less than the minimum denomination applicable to such
Certificateholder’s Certificates held through a Restricted Global Security, to
be exchanged, such instructions to contain information regarding the
participant
account with the Depository to be credited with such increase, and (B)
a
certificate in the form of Exhibit N-2 hereto given by the holder of
such
beneficial interest and stating, among other things, that the Person
transferring such interest in such Regulation S Global Security reasonably
believes that the Person acquiring such interest in a Restricted Global
Security
is a Qualified Institutional Buyer within the meaning of Rule 144A, is
obtaining
such beneficial interest in a transaction meeting the requirements of
Rule 144A
and in accordance with any applicable securities laws of any State of
the United
States or any other jurisdiction, then the Certificate Registrar will
reduce the
principal amount of the Regulation S Global Security and increase the
principal
amount of the Restricted Global Security by the aggregate principal amount
of
the beneficial interest in the Regulation S Global Security to be transferred
and the Certificate Registrar shall instruct the Depository, concurrently
with
such reduction, to credit or cause to be credited to the account of the
Person
specified in such instructions a beneficial interest in the Restricted
Global
Security equal to the reduction in the principal amount of the Regulation
S
Global Security.
(iv) Other
Exchanges.
In the
event that a Restricted Global Security or Regulation S Global Security,
as
applicable, is exchanged for Certificates in definitive registered form
without
interest coupons, such Certificates may be exchanged for one another
only in
accordance with such procedures as are substantially consistent with
the
provisions above (including certification requirements intended to insure
that
such transfers comply with Rule 144A, comply with Rule 501(a)(1), (2),
(3) or
(7) or are to non-U.S. Persons in compliance with Regulation S under
the
Securities Act, as the case may be) and as may be from time to time adopted
by
the Depositor and the Certificate Registrar.
110
(v) Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant
to the
provisions of Section 6.02(f)(iii).
(g) No
service charge shall be made for any registration of transfer or exchange
of
Certificates of any Class, but the Certificate Registrar may require
payment of
a sum sufficient to cover any tax or governmental charge that may be
imposed in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall
be
cancelled by the Certificate Registrar and disposed of pursuant to its
standard
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee or the Certificate
Registrar or the Trustee or the Certificate Registrar receives evidence
to its
satisfaction of the destruction, loss or theft of any Certificate and
(ii) there
is delivered to the Trustee, the Certificate Registrar and the Depositor
such
security or indemnity as may be required by them to save each of them
harmless,
then, in the absence of notice to the Trustee, the Depositor or the Certificate
Registrar that such Certificate has been acquired by a bona fide purchaser,
the
Securities Administrator shall execute on behalf of the Trust and the
Certificate Registrar shall authenticate and deliver, in exchange for
or in lieu
of any such mutilated, destroyed, lost or stolen Certificate, a new Certificate
of like tenor and Percentage Interest. Upon the issuance of any new Certificate
under this Section, the Trustee, the Depositor or the Certificate Registrar
may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses
(including
the fees and expenses of the Depositor and the Certificate Registrar)
in
connection therewith. Any duplicate Certificate issued pursuant to this
Section,
shall constitute complete and indefeasible evidence of ownership in the
Trust
Fund, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
SECTION
6.04. Persons
Deemed Owners.
The
Depositor, the Trustee, the Certificate Registrar, the Paying Agent and
any
agent of the Depositor, the Trustee, the Certificate Registrar or the
Paying
Agent may treat the Person, including a Depository, in whose name any
Certificate is registered as the owner of such Certificate for the purpose
of
receiving distributions pursuant to Section 5.01 hereof and for all other
purposes whatsoever, and none of the Trust, the Depositor, the Trustee,
the
Certificate Registrar, the Paying Agent or any agent of any of them shall
be
affected by notice to the contrary.
111
SECTION
6.05. Appointment
of Paying Agent.
(a) The
Trustee may appoint a Paying Agent (which may be the Trustee) for the
purpose of
making distributions to Certificateholders hereunder. The Trustee hereby
appoints the Securities Administrator as the initial Paying Agent. The
duties of
the Paying Agent may include the obligation (i) to withdraw funds from
the
Distribution Account pursuant to Section 4.03 hereof and (ii) to distribute
statements and provide information to Certificateholders as required
hereunder.
The Paying Agent hereunder shall at all times be an entity duly incorporated
and
validly existing under the laws of the United States of America or any
state
thereof, authorized under such laws to exercise corporate trust powers
and
subject to supervision or examination by federal or state authorities.
The
Securities Administrator, as Paying Agent, shall hold all sums, if any,
held by
it for payment to the Certificateholders in trust for the benefit of
the
Certificateholders entitled thereto until such sums shall be paid to
such
Certificateholders and shall comply with all requirements of the Code
regarding
the withholding of payments in respect of federal income taxes due from
Certificate Owners and otherwise comply with the provisions of this Agreement
applicable to it.
ARTICLE
VII
DEFAULT
SECTION
7.01. Events
of Default.
(a) If
any
one of the following events (each, an “Event of Default”) shall occur and be
continuing:
(i) the
failure by the Master Servicer to (A) make any Advance on the Business
Day
immediately preceding the related Distribution Date or (B) to deposit
in the
Distribution Account any deposit required to be made under the terms
of this
Agreement, and in either case such failure continues unremedied for a
period of
one Business Day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master
Servicer;
(or, if applicable, such shorter time period as is provided in the penultimate
sentence of Section 7.01(c)); or
(ii) the
failure by the Master Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master
Servicer
as set forth in this Agreement, which failure continues unremedied for
a period
of 60 days, in each case after the date (A) on which written notice of
such
failure, requiring the same to be remedied, shall have been given to
the Master
Servicer by the Trustee or to the Master Servicer and the Trustee by
Holders of
Certificates evidencing at least 25% of the Voting Rights or (B) on which
a
Servicing Officer of the Master Servicer has actual knowledge of such
failure
(or, in the case of a breach of its obligation beyond any applicable
cure period
to provide an assessment of compliance, an attestation report or a
Xxxxxxxx-Xxxxx Certification pursuant to Sections 3.16 and 3.18, respectively);
or
112
(iii) the
entry
against the Master Servicer of a decree or order by a court or agency
or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding up or liquidation
of its
affairs, and the continuance of any such decree or order unstayed and
in effect
for a period of 60 days; or
(iv) the
Master Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator or receiver or liquidator or similar person
in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings of or relating to the Master Servicer or of or relating
to
all or substantially all of its property; or a decree or order of a court
or
agency or supervisory authority having jurisdiction in the premises for
the
appointment of a conservator, receiver, liquidator or similar person
in any
insolvency, readjustment of debt, marshalling of assets and liabilities
or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Master Servicer and such decree or order
shall
have remained in force undischarged, unbonded or unstayed for a period
of 60
days; or the Master Servicer shall admit in writing its inability to
pay its
debts generally as they become due, file a petition to take advantage
of any
applicable insolvency or reorganization statute, make an assignment for
the
benefit of its creditors or voluntarily suspend payment of its
obligations;
then,
and
in each and every such case, so long as an Event of Default shall not
have been
remedied within the applicable grace period, the Trustee shall, at the
written
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51%, or at its option may, by notice then given in writing
to the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. Any such notice to the Master
Servicer shall also be given to each Rating Agency, the Depositor, the
Credit
Risk Manager and the Seller. On or after the receipt by the Master Servicer
(and
by the Trustee if such notice is given by the Holders) of such written
notice,
all authority and power of the Master Servicer under this Agreement,
whether
with respect to the Certificates or the Mortgage Loans or otherwise,
shall pass
to and be vested in the Trustee and the Trustee is hereby authorized
and
empowered to execute and deliver, on behalf of the Master Servicer, as
attorney-in-fact or otherwise, any and all documents and other instruments,
and
to do or accomplish all other acts or things necessary or appropriate
to effect
the purposes of such notice of termination, whether to complete the transfer
and
endorsement of each Mortgage Loan and related documents or otherwise.
The Master
Servicer agrees to cooperate with the Trustee in effecting the termination
of
the responsibilities and rights of the Master Servicer hereunder, including,
without limitation, the delivery to the Trustee of all documents and
records
requested by it to enable it to assume the Master Servicer's functions
under
this Agreement within ten Business Days subsequent to such notice and
the
transfer within one Business Day subsequent to such notice to the Trustee
for
the administration by it of all cash amounts that shall at the time be
held by
the Master Servicer and to be deposited by it in the Distribution Account,
any
REO Account or any Servicing Account or that have been deposited by the
Master
Servicer in such accounts or thereafter received by the Master Servicer
with
respect to the Mortgage Loans or any REO Property received by the Master
Servicer. All reasonable costs and expenses (including attorneys' fees)
incurred
in connection with transferring the Master Servicer's duties and the
Mortgage
Files to the successor Master Servicer and amending this Agreement to
reflect
such succession as Master Servicer pursuant to this Section shall be
paid by the
predecessor Master Servicer (or if the predecessor Master Servicer is
the
Trustee, the terminated Master Servicer) upon presentation of reasonable
documentation of such costs and expenses. The termination of the rights
and
obligations of the Master Servicer shall not affect any liability it
may have
incurred prior to such termination. To the extent that such costs and
expenses
of the Trustee are not fully and timely reimbursed by the predecessor
Master
Servicer, the Trustee shall be entitled to reimbursement of such costs
and
expenses from the Distribution Account.
113
(b) The
Securities Administrator shall not later than the close of business on
the
Business Day immediately preceding the related Distribution Date notify
the
Trustee in writing of the Master Servicer’s failure to make any Advance required
to be made under this Agreement on such date and the amount of such Advance.
By
no later than 10:00 A.M. (Chicago time) on the relevant Distribution
Date, the
Securities Administrator shall notify the Trustee of the continuance
of such
failure or that the Master Servicer has made the Advance, as the case
may be.
Notwithstanding the terms of the Event of Default described in clause
(i)(A) of
Section 7.01(a), the Trustee, upon receipt of written notice on the Distribution
Date from the Securities Administrator of the continuance of the failure
of the
Master Servicer to make an Advance or deposit funds to the Distribution
Account,
shall, by notice in writing to the Master Servicer, which may be delivered
by
telecopy, immediately suspend all of the rights and obligations of the
Master
Servicer thereafter arising under this Agreement, but without prejudice
to any
rights it may have as a Certificateholder or to reimbursement of outstanding
Advances or other amounts for which the Master Servicer was entitled
to
reimbursement as of the date of suspension, and the Trustee, subject
to the cure
provided for in this paragraph, if available, shall act as provided in
Section
7.02 to carry out the duties of the Master Servicer, including the obligation
to
make any Advance the nonpayment of which is described in clause (i)(A)
of
Section 7.01(a). Any such action taken by the Trustee must be prior to
the
distribution on the relevant Distribution Date, and shall have all of
the rights
incidental thereto. If the Master Servicer shall within two Business
Days
following such suspension remit to the Trustee the amount of any Advance the
nonpayment of which by the Master Servicer is described in clause (i)(A)
of
Section 7.01(a), together with all other amounts necessary to reimburse
the
Trustee for actual, necessary and reasonable costs incurred by the Trustee
because of action taken pursuant to this subsection (including interest
on any
Advance or other amounts paid by the Trustee (from and including the
respective
dates thereof) at a per annum rate equal to the prime rate for U.S. money
center
commercial banks as published in the Wall Street Journal), then the Trustee,
subject to the last two sentences of this paragraph, may at its sole
discretion
permit the Master Servicer to resume its rights and obligations as Master
Servicer hereunder. If the Master Servicer shall fail to remit such amounts
to
the Trustee within such two Business Days after the Distribution Date,
then an
Event of Default shall occur and such notice of suspension shall be deemed
to be
a notice of termination without any further action on the part of the
Trustee.
The Master Servicer agrees that if it fails to make a required Advance
by 10:00
A.M. (Chicago time) on the related Distribution Date on more than two
occasions
in any 12 month period, the Trustee shall be under no obligation to permit
the
Master Servicer to resume its rights and obligations as Master Servicer
hereunder, and notwithstanding the cure period provided in Section
7.01(a)(i)(A), an Event of Default shall be deemed to have occurred on
the
relevant Distribution Date.
114
SECTION
7.02. Trustee
to Act.
(a) From
and
after the date the Master Servicer (and the Trustee, if notice is sent
by the
Holders) receives a notice of termination pursuant to Section 7.01, the
Trustee
shall be the successor in all respects to the Master Servicer in its
capacity as
servicer under this Agreement and the transactions set forth or provided
for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof arising on and after its succession. As compensation therefor,
the
Trustee shall be entitled to such compensation as the Master Servicer
would have
been entitled to hereunder if no such notice of termination had been
given.
Notwithstanding the above, (i) if the Trustee is unwilling to act as
successor
Master Servicer or (ii) if the Trustee is legally unable so to act, the
Trustee
shall appoint or petition a court of competent jurisdiction to appoint,
any
established housing and home finance institution, bank or other mortgage
loan or
home equity loan servicer having a net worth of not less than $15,000,000
as the
successor to the Master Servicer hereunder in the assumption of all or
any part
of the responsibilities, duties or liabilities of the Master Servicer
hereunder;
provided, that the appointment of any such successor Master Servicer
shall not
result in the qualification, reduction or withdrawal of the ratings assigned
to
the Certificates by each Rating Agency as evidenced by a letter to such
effect
from each Rating Agency. Pending appointment of a successor to the Master
Servicer hereunder, unless the Trustee is prohibited by law from so acting,
the
Trustee shall act in such capacity as hereinabove provided. In connection
with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to
the
compensation which the Master Servicer would otherwise have received
hereunder.
The appointment of a successor Master Servicer shall not affect any liability
of
the predecessor Master Servicer which may have arisen under this Agreement
prior
to its termination as Master Servicer to pay any deductible under an
insurance
policy pursuant to Section 3.09 or to indemnify the Trustee pursuant
to Section
3.27), nor shall any successor Master Servicer be liable for any acts
or
omissions of the predecessor Master Servicer or for any breach by such
Master
Servicer of any of its representations or warranties contained herein
or in any
related document or agreement. The Trustee and such successor shall take
such
action, consistent with this Agreement, as shall be necessary to effectuate
any
such succession.
(b) Any
successor, including the Trustee, to the Master Servicer as Master Servicer
shall during the term of its service as Master Servicer continue to service
and
administer the Mortgage Loans for the benefit of Certificateholders,
and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Master Servicer hereunder
and
a Fidelity Bond in respect of its officers, employees and agents to the
same
extent as the Master Servicer is so required pursuant to Section 3.04.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be
liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Master
Servicer
to act as successor Master Servicer under this Agreement and the transactions
set forth or provided for herein.
115
SECTION
7.03. Waiver
of Event of Default.
The
Majority Certificateholders may, on behalf of all Certificateholders,
by notice
in writing to the Trustee, direct the Trustee to waive any events permitting
removal of any Master Servicer under this Agreement, provided,
however,
that
the Majority Certificateholders may not waive an event that results in
a failure
to make any required distribution on a Certificate without the consent
of the
Holder of such Certificate. Upon any waiver of an Event of Default, such
event
shall cease to exist and any Event of Default arising therefrom shall
be deemed
to have been remedied for every purpose of this Agreement. No such waiver
shall
extend to any subsequent or other event or impair any right consequent
thereto
except to the extent expressly so waived. Notice of any such waiver shall
be
given by the Trustee to each Rating Agency.
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to any Master Servicer pursuant
to
this Article VII or Section 3.30, the Trustee shall give prompt written
notice
thereof to the Securities Administrator and the Certificateholders at
their
respective addresses appearing in the Certificate Register and to each
Rating
Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute an Event of Default
of which
a Responsible Officer of the Trustee becomes aware of the occurrence
of such an
event, the Trustee shall transmit by mail to all Certificateholders notice
of
such occurrence unless such Event of Default shall have been waived or
cured.
ARTICLE
VIII
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
8.01. Duties
of the Trustee and the Securities Administrator.
The
Trustee, prior to the occurrence of an Event of Default and after the
curing or
waiver of all Events of Default which may have occurred, and the Securities
Administrator each undertake to perform such duties and only such duties
as are
specifically set forth in this Agreement. If an Event of Default has
occurred
(which has not been cured or waived) of which a Responsible Officer has
actual
knowledge, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their
exercise,
as a prudent man would exercise or use under the circumstances in the
conduct of
his own affairs unless the Trustee is acting as successor Master Servicer,
in
which case it shall use the same degree of care and skill as the Master
Servicer
hereunder with respect to the exercise of the rights and powers of the
Master
Servicer hereunder.
116
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator,
which are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator will be responsible
for the
accuracy or content of any such resolutions, certificates, statements,
opinions,
reports, documents or other instruments. If any such instrument is found
not to
conform to the requirements of this Agreement in a material manner, the
Trustee
and the Securities Administrator shall take such action as it deems appropriate
to have the instrument corrected. If the instrument is not corrected
to the
satisfaction of the Trustee or the Securities Administrator, as applicable,
the
Trustee or the Securities Administrator, as applicable, shall provide
notice
thereof to the Certificateholders and will, at the expense of the Trust
Fund,
which expense shall be reasonable given the scope and nature of the required
action, take such further action as directed by the
Certificateholders.
On
each
Distribution Date, the Securities Administrator, as Paying Agent, shall
make
monthly distributions to the Final Maturity Reserve Account (commencing
with the
Distribution Date in December 2026) and the Certificateholders from funds
in the
Distribution Account, the Basis Risk Reserve Fund and, on the Final Maturity
Reserve Termination Date, the Final Maturity Reserve Account, as applicable,
in
each case as provided in Sections 5.01, 5.07, 5.09 and 10.01 hereof based
on the
report of the Securities Administrator.
No
provision of this Agreement shall be construed to relieve the Trustee
or the
Securities Administrator from liability for its own negligent action,
its own
negligent failure to act or its own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such
Events
of Default which may have occurred, the duties and obligations of the
Trustee
and the Securities Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of such of its
duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the
Trustee
or the Securities Administrator and, in the absence of bad faith on the
part of
the Trustee or the Securities Administrator, respectively, the Trustee
or the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
any
certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Securities Administrator shall be liable for an error
of
judgment made in good faith by a Responsible Officer of the Trustee or
an
officer of the Securities Administrator, respectively, unless it shall
be proved
that the Trustee or the Securities Administrator, respectively, was negligent
in
ascertaining or investigating the facts related thereto;
(iii) neither
the Trustee nor the Securities Administrator shall be personally liable
with
respect to any action taken, suffered or omitted to be taken by it in
good faith
in accordance with the consent or at the direction of Holders of Certificates
as
provided herein relating to the time, method and place of conducting
any remedy
pursuant to this Agreement, or exercising or omitting to exercise any
trust or
power conferred upon the Trustee or the Securities Administrator, respectively,
under this Agreement; and
117
(iv) the
Trustee shall not be charged with knowledge of any Event of Default or
a
Document Transfer Event or any other event or matter that may require
it to take
action or omit to take action hereunder unless a Responsible Officer
of the
Trustee at the Corporate Trust Office receives written notice of such
Event of
Default or Document Transfer Event.
Neither
the Trustee nor the Securities Administrator shall be required to expend
or risk
its own funds or otherwise incur financial or other liability in the
performance
of any of its duties hereunder, or in the exercise of any of its rights
or
powers, if there is reasonable ground for believing that the repayment
of such
funds or indemnity satisfactory to it against such risk or liability
is not
assured to it, and none of the provisions contained in this Agreement
shall in
any event require the Trustee or the Securities Administrator to perform,
or be
responsible for the manner of performance of, any of the obligations
of the
Master Servicer under this Agreement, except during such time, if any,
as the
Trustee shall be the successor to, and be vested with the rights, duties,
powers
and privileges of, the Master Servicer in accordance with the terms of
this
Agreement.
SECTION
8.02. Certain
Matters Affecting the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee and the Securities Administrator may request and conclusively
rely upon,
and shall be fully protected in acting or refraining from acting upon,
any
resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent,
order, appraisal, bond or other paper or document reasonably believed
by it to
be genuine and to have been signed or presented by the proper party or
parties,
and the manner of obtaining consents and of evidencing the authorization
of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee and the Securities Administrator may
prescribe;
(ii) the
Trustee and the Securities Administrator may consult with counsel and
any advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or
omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(iii) neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement,
or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at
the request, order or direction of any of the Certificateholders, pursuant
to
the provisions of this Agreement, unless such Certificateholders shall
have
offered to the Trustee or the Securities Administrator, respectively,
reasonable
security or indemnity satisfactory to it against the costs, expenses
and
liabilities which may be incurred therein or thereby; the right of the
Trustee
to perform any discretionary act enumerated in this Agreement shall not
be
construed as a duty, and the Trustee shall not be answerable for other
than its
negligence or willful misconduct in the performance of any such
act;
118
(iv) neither
the Trustee nor the Securities Administrator shall be personally liable
for any
action taken, suffered or omitted by it in good faith and believed by
it to be
authorized or within the discretion or rights or powers conferred upon
it by
this Agreement;
(v) neither
the Securities Administrator nor, prior to the occurrence of an Event
of Default
and after the curing or waiver of all Events of Default which may have
occurred,
the Trustee shall be bound to make any investigation into the facts or
matters
stated in any resolution, certificate, statement, instrument, opinion,
report,
notice, request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by the Majority Certificateholder;
provided,
however,
that if
the payment within a reasonable time to the Trustee or the Securities
Administrator of the costs, expenses or liabilities likely to be incurred
by it
in the making of such investigation is, in the opinion of the Trustee
or the
Securities Administrator, as applicable, not reasonably assured to the
Trustee
or the Securities Administrator by the security afforded to it by the
terms of
this Agreement, the Trustee or the Securities Administrator, as applicable,
may
require reasonable indemnity against such cost, expense, liability or
payment of
such estimated expenses from the Certificateholders as a condition to
such
proceeding. If the Master Servicer fails to reimburse the Trustee or
the
Securities Administrator in respect of the reasonable expense of every
such
examination relating to the Master Servicer, the Trustee or the Securities
Administrator shall be reimbursed by the Trust Fund;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Securities
Administrator or the Master Servicer until such time as the Trustee may
be
required to act as the Master Servicer pursuant to Section 7.02 hereof
and
thereupon only for the acts or omissions of the Trustee as a successor
Master
Servicer;
(vii) the
Trustee and the Securities Administrator may execute any of the trusts
or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, attorneys or a custodian, and shall not be responsible
for any
willful misconduct or negligence on the part of any agent, nominee, attorney
or
custodian appointed by the Trustee or the Securities Administrator in
good
faith;
(viii) the
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other
than its
negligence or willful misconduct in the performance of such act;
and
(ix)
in
order
to comply with laws, rules, regulations and executive orders in effect
from time
to time applicable to the banking institutions, including those relating
to the
funding of terrorism and money laundering (“Applicable Law”), the Trustee and
the Securities Administrator are required to obtain, verify and record
certain
information relating to certain individuals and certain entities which
maintain
a business relationship with the Trustee and the Securities Administrator.
Accordingly, each of the parties agrees to provide the Trustee and the
Securities Administrator upon its request from time to time such identifying
information and documentation as may be available for such party in order
to
enable the Trustee and the Securities Administrator to comply with Applicable
Law.
119
SECTION
8.03. Trustee
and Securities Administrator Not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Securities Administrator on the Certificates) shall be taken as
the
statements of the Depositor or the Seller, and neither the Trustee nor
the
Securities Administrator assumes any responsibility for the correctness
of the
same. Neither the Trustee nor the Securities Administrator makes any
representations or warranties as to the validity or sufficiency of this
Agreement or of the Certificates (other than with respect to the Securities
Administrator, the signature and authentication of the Securities Administrator
on the Certificates) or of any Mortgage Loan or related document or of
MERS or
the MERS System. The Trustee shall not be accountable for the use or
application
by the Master Servicer or the Securities Administrator, or for the use
or
application of any funds paid to the Master Servicer in respect of related
Mortgage Loans or deposited in or withdrawn from the Distribution Account
by the
Master Servicer or the Securities Administrator. Neither the Trustee
nor the
Securities Administrator shall at any time have any responsibility or
liability
for or with respect to the legality, validity and enforceability of any
Mortgage
or any Mortgage Loan, or the perfection and priority of any Mortgage
or the
maintenance of any such perfection and priority, or for or with respect
to the
sufficiency of the Trust Fund or its ability to generate the payments
to be
distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other
than if
the Trustee shall assume the duties of the Master Servicer pursuant to
Section
7.02 hereof); the validity of the assignment of any Mortgage Loan to
the Trustee
or of any intervening assignment; the completeness of any Mortgage Loan;
the
performance or enforcement of any Mortgage Loan (other than if the Trustee
shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof);
the
compliance by the Depositor or the Seller with any warranty or representation
made under this Agreement or in any related document or the accuracy
of any such
warranty or representation prior to the Trustee’s receipt of notice or other
discovery of any non-compliance therewith or any breach thereof; any
investment
of monies by or at the direction of the Master Servicer or any loss resulting
therefrom, it being understood that the Trustee shall remain responsible
for any
Trust Fund property that it may hold in its individual capacity and the
Securities Administrator shall remain responsible for any Trust Fund
property
that it may hold in its individual capacity; the acts or omissions of
the Master
Servicer (other than as to the Securities Administrator, if it is also
the
Master Servicer, and as to the Trustee, if the Trustee shall assume the
duties
of the Master Servicer pursuant to Section 7.02 hereof, and then only
for the
acts or omissions of the Trustee as the successor Master Servicer), or
any acts
or omissions of, any Servicer or any Mortgagor; any action of the Master
Servicer (other than as to the Securities Administrator, if it is also
the
Master Servicer, and as to the Trustee, if the Trustee shall assume the
duties
of the Master Servicer pursuant to Section 7.02 hereof), or in the case
of the
Trustee, the Securities Administrator or any Servicer taken in the name
of the
Trustee; the failure of the Master Servicer or any Servicer to act or
perform
any duties required of it as agent or on behalf of the Trustee or the
Trust Fund
hereunder; or any action by the Trustee taken at the instruction of the
Master
Servicer (other than if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof, and then only for the actions
of the
Trustee as the successor Master Servicer); provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform
its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files, if so required pursuant to Section 2.01
of this
Agreement.
120
SECTION
8.04. Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
The
Trustee, the Custodian, the Master Servicer and the Securities Administrator
in
their respective individual capacities, or in any capacity other than
as
Trustee, Custodian, Master Servicer or Securities Administrator hereunder,
may
become the owner or pledgee of any Certificates with the same rights
as they
would have if they were not Trustee, Custodian, Master Servicer or Securities
Administrator, as applicable, and may otherwise deal with the parties
hereto.
SECTION
8.05. Trustee’s
and Securities Administrator’s Fees and Expenses.
The
Trustee (including in its capacity as Custodian) shall be compensated
by the
Master Servicer for its services hereunder on behalf of the Trust Fund
in the
amount agreed upon by the Master Servicer and the Trustee. The Trustee
Fee shall
paid from a portion of the Master Servicing Fee. The Securities Administrator
shall be compensated by the Master Servicer for its services hereunder
from a
portion of the Master Servicing Fee. In addition, the Trustee and the
Securities
Administrator will be entitled to recover from the Distribution Account
pursuant
to Section 4.03(a) all reasonable out-of-pocket expenses, disbursements
and
advances and the expenses of the Trustee (including for such purpose,
any fees
and expenses relating to its capacity as Custodian hereunder) and the
Securities
Administrator, respectively, including without limitation, in connection
with
any filing that the Securities Administrator is required to make under
Section
3.19 hereof, any Event of Default, any breach of this Agreement or any
claim or
legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee or the Securities Administrator, respectively,
in the performance of its duties or the administration of the trusts
hereunder,
except any such expense, disbursement or advance as may arise from its
negligence or intentional misconduct or which is specifically designated
herein
as the responsibility of the Depositor, the Seller, the Master Servicer,
the
Certificateholders or the Trust Fund hereunder or thereunder. If funds
in the
Distribution Account are insufficient therefor, the Trustee, the Custodian
and
the Securities Administrator shall recover such expenses from future
collections
on the Mortgage Loans or as otherwise agreed by the Certificateholders.
Such
compensation and reimbursement obligation shall not be limited by any
provision
of law in regard to the compensation of a trustee of an express trust.
121
SECTION
8.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and Securities Administrator hereunder shall at all times be
an entity
duly organized and validly existing under the laws of the United States
of
America or any state thereof, authorized under such laws to exercise
corporate
trust powers, each having a combined capital and surplus of at least
$50,000,000
and (except with respect to the initial Trustee) a minimum long-term
debt rating
in the third highest rating category by each Rating Agency and in each
Rating
Agency’s two highest short-term rating categories, and subject to supervision
or
examination by federal or state authority. If such entity publishes reports
of
condition at least annually, pursuant to law or to the requirements of
the
aforesaid supervising or examining authority, then for the purposes of
this
Section 8.06, the combined capital and surplus of such entity shall be
deemed to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than
the
initial Trustee) shall be in a state with respect to which an Opinion
of Counsel
has been delivered to such Trustee at the time such Trustee is appointed
Trustee
to the effect that the Trust Fund will not be a taxable entity under
the laws of
such state. In case at any time the Trustee or the Securities Administrator
shall cease to be eligible in accordance with the provisions of this
Section
8.06, the Trustee or the Securities Administrator, as applicable shall
resign
immediately in the manner and with the effect specified in Section 8.07
hereof.
SECTION
8.07. Resignation
or Removal of Trustee and Securities Administrator.
The
Trustee and Securities Administrator may at any time resign and be discharged
from the trusts hereby created by giving written notice thereof to the
Depositor, the Seller, the Master Servicer and each Rating Agency. Upon
receiving such notice of resignation of the Trustee, the Depositor shall
promptly appoint a successor Trustee that meets the requirements in Section
8.06
or, in the case of notice of resignation of the Securities Administrator,
the
Trustee (in consultation with the Depositor) shall promptly appoint a
successor
Securities Administrator that meets the requirements in Section 8.06,
in each
case, by written instrument, in duplicate, one copy of which instrument
shall be
delivered to (i) each of the resigning Trustee or Securities Administrator,
as
applicable and (ii) the successor Trustee or successor Securities Administrator,
as applicable. If no successor Trustee or successor Securities Administrator,
as
applicable, shall have been so appointed and having accepted appointment
within
30 days after the giving of such notice of resignation, the resigning
Trustee or
Securities Administrator may petition any court of competent jurisdiction
for
the appointment of a successor Trustee or Securities Administrator, as
applicable.
If
at any
time the Trustee or the Securities Administrator shall cease to be eligible
in
accordance with the provisions of Section 8.06 hereof and shall fail
to resign
after written request therefor by the Depositor or if at any time the
Trustee or
the Securities Administrator shall be legally unable to act, or shall
be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or the
Securities
Administrator, as applicable, or of its property shall be appointed,
or any
public officer shall take charge or control of the Trustee or the Securities
Administrator, as applicable, or of its property or affairs for the purpose
of
rehabilitation, conservation or liquidation, or if the Trustee (in its
capacity
as a Custodian) or the Securities Administrator fails to provide an assessment
of compliance or an attestation report required under Section 3.16 within
15
calendar days of March 1 of each calendar year in which Exchange Act
reports are
required then the Depositor may remove the Trustee or the Trustee may
remove the
Securities Administrator, as applicable. If the Depositor or the Trustee
removes
the Trustee or the Securities Administrator, respectively under the authority
of
the immediately preceding sentence, the Depositor or the Trustee shall
promptly
appoint a successor Trustee or successor Securities Administrator that
meets the
requirements of Section 8.06, as applicable, by written instrument, in
quadruplicate, one copy of which instrument shall be delivered to the
Trustee or
the Securities Administrator, as applicable, so removed, one copy to
the
successor Trustee or successor Securities Administrator, as applicable
and one
copy to the Master Servicer.
122
The
Majority Certificateholders may at any time remove the Trustee or the
Securities
Administrator by written instrument or instruments delivered to the Depositor
and the Trustee; the Depositor or the Trustee shall thereupon use its
best
efforts to appoint a successor Trustee or successor Securities Administrator,
as
applicable, in accordance with this Section.
Any
resignation or removal of the Trustee or the Securities Administrator
and
appointment of a successor Trustee or a successor Securities Administrator,
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee or
a
successor Securities Administrator, as applicable, as provided in Section
8.08
hereof. If the Trustee or the Securities Administrator is removed pursuant
to
this Section 8.07, it shall be reimbursed any outstanding and unpaid
fees and
expenses, and if removed under the authority of the immediately preceding
paragraph, the Trustee or the Securities Administrator shall also be
reimbursed
any outstanding and unpaid costs and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Master
Servicer
resigns or is removed as Master Servicer hereunder, the Securities Administrator
shall have the right to resign immediately as Securities Administrator
by giving
written notice to the Depositor and the Trustee, with a copy to each
Rating
Agency.
SECTION
8.08. Successor
Trustee and Successor Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as
provided in
Section 8.07 hereof shall execute, acknowledge and deliver to the Depositor,
the
Seller and the Master Servicer and to its predecessor Trustee or predecessor
Securities Administrator, as applicable, an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall become effective, and such successor Trustee or successor Securities
Administrator, without any further act, deed or conveyance, shall become
fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator. The Depositor, the Seller, the Master Servicer and the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall execute and deliver such instruments and do such other things as
may
reasonably be required for fully and certainly vesting and confirming
in the
successor Trustee or successor Securities Administrator, as applicable,
all such
rights, powers, duties and obligations.
123
No
successor Trustee or successor Securities Administrator shall accept
appointment
as provided in this Section 8.08 unless at the time of such acceptance
such
successor Trustee or successor Securities Administrator shall be eligible
under
the provisions of Section 8.06 hereof and the appointment of such successor
Trustee or successor Securities Administrator shall not result in a downgrading
of the Senior Certificates by each Rating Agency, as evidenced by a letter
from
such Rating Agency.
Upon
acceptance of appointment by a successor Trustee or successor Securities
Administrator, as applicable, as provided in this Section 8.08, the successor
Trustee or successor Securities Administrator shall mail notice of such
appointment hereunder to all Holders of Certificates at their addresses
as shown
in the Certificate Register and to each Rating Agency.
SECTION
8.09. Merger
or Consolidation of Trustee or Securities Administrator.
Any
entity into which the Trustee or the Securities Administrator may be
merged or
converted or with which it may be consolidated, or any entity resulting
from any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any entity succeeding to the corporate
trust
business of the Trustee or the Securities Administrator, shall be the
successor
of the Trustee or the Securities Administrator, as applicable, hereunder,
provided such entity shall be eligible under the provisions of Section
8.06 and
8.08 hereof, without the execution or filing of any paper or any further
act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose
of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or any Mortgaged Property may at the time be located, the Depositor and
the
Trustee acting jointly shall have the power, and the Trustee shall, and
shall
instruct the Depositor to, execute and deliver all instruments to appoint
one or
more Persons, approved by the Trustee to act as co-trustee or co-trustees,
jointly with the Trustee, or separate trustee or separate trustees, at
the
expense of the Trust Fund, of all or any part of the Trust Fund, and
to vest in
such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust Fund, or any part thereof,
and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Master Servicer and the Trustee
may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor Trustee
under
Section 8.06 hereof, and no notice to Certificateholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 8.08
hereof.
Every
separate trustee and co-trustee shall, to the extent permitted by law,
be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the
Trustee
shall be conferred or imposed upon and exercised or performed by the
Trustee and
such separate trustee or co-trustee jointly (it being understood that
such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law
of any
jurisdiction in which any particular act or acts are to be performed
(whether as
Trustee hereunder or as successor to the Master Servicer hereunder),
the Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event
such rights, powers, duties and obligations (including the holding of
title to
the Trust Fund or any portion thereof in any such jurisdiction) shall
be
exercised and performed singly by such separate trustee or co-trustee,
but
solely at the direction of the Trustee;
124
(ii) no
trustee hereunder shall be held personally liable by reason of any act
or
omission of any other trustee hereunder; and
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the
resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed
to have
been given to each of the then separate trustees and co-trustees, as
effectively
as if given to each of them. Every instrument appointing any separate
trustee or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the
trusts
conferred, shall be vested with the estates or property specified in
its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to
the conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy thereof given
to the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee,
its
agent or attorney-in-fact, with full power and authority, to the extent
not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall
die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised
by the
Trustee, to the extent permitted by law, without the appointment of a
new or
successor Trustee.
SECTION
8.11. Limitation
of Liability.
The
Certificates are executed by the Securities Administrator, not in its
individual
capacity but solely as Securities Administrator on behalf of the Trust
Fund, in
the exercise of the powers and authority conferred and vested in it by
this
Agreement. Each of the undertakings and agreements made on the part of
the
Securities Administrator in the Certificates is made and intended not
as a
personal undertaking or agreement by the Trustee but is made and intended
for
the purpose of binding only the Trust Fund.
SECTION
8.12. Trustee
May Enforce Claims Without Possession of Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates
may be
prosecuted and enforced by the Trustee without the possession of any
of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own
name or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment
shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee (for the avoidance of doubt,
in its
individual capacity and as Trustee on behalf of the Trust Fund), its
agents and
counsel, be for the ratable benefit or the Certificateholders in respect
of
which such judgment has been recovered.
125
(b) The
Trustee shall afford the Seller, the Depositor and each Certificateholder
upon
reasonable notice during normal business hours at its Corporate Trust
Office or
other office designated by the Trustee, access to all records maintained
by the
Trustee in respect of its duties hereunder and access to officers of
the Trustee
responsible for performing such duties. Upon request, the Trustee shall
furnish
the Depositor and any requesting Certificateholder with its most recent
audited
financial statements. The Trustee shall cooperate fully with the Seller,
the
Depositor and such Certificateholder and shall, subject to the first
sentence of
this Section 8.12(b), make available to the Seller, the Depositor and
such
Certificateholder for review and copying such books, documents or records
as may
be requested with respect to the Trustee’s duties hereunder. The Seller, the
Depositor and the Certificateholders shall not have any responsibility
or
liability for any action or failure to act by the Trustee and are not
obligated
to supervise the performance of the Trustee under this Agreement or
otherwise.
(c) The
Securities Administrator shall afford the Seller, the Depositor, the
Trustee and
each Certificateholder upon reasonable notice during normal business
hours at
its offices at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or other
office
designated by the Securities Administrator, access to all records maintained
by
the Securities Administrator in respect of its duties hereunder and access
to
officers of the Securities Administrator responsible for performing such
duties.
The Securities Administrator shall cooperate fully with the Seller, the
Depositor, the Trustee and such Certificateholder and shall, subject
to the
first sentence of this Section 8.12(c), make available to the Seller,
the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be reasonably requested with respect to the
Securities Administrator’s duties hereunder. The Seller, the Depositor, the
Trustee and the Certificateholders shall not have any responsibility
or
liability for any action or failure to act by the Securities Administrator
and
are not obligated to supervise the performance of the Securities Administrator
under this Agreement or otherwise.
SECTION
8.13. Suits
for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur
and be
continuing, the Trustee may proceed to protect and enforce its rights
and the
rights of the Certificateholders under this Agreement, as the case may
be, by a
suit, action or proceeding in equity or at law or otherwise, whether
for the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for
the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
126
SECTION
8.14. Waiver
of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives,
any
requirement of any jurisdiction in which the Trust Fund, or any part
thereof,
may be located that the Trustee post a bond or other surety with any
court,
agency or body whatsoever.
SECTION
8.15. Waiver
of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives,
any
requirement of any jurisdiction in which the Trust Fund, or any part
thereof,
may be located that the Trustee file any inventory, accounting or appraisal
of
the Trust Fund with any court, agency or body at any time or in any manner
whatsoever.
SECTION
8.16. Appointment
of Custodians.
The
Trustee may appoint one or more custodians to hold all or a portion of
the
related Mortgage Files as agent for the Trustee, by entering into a custodial
agreement. The custodian may at any time be terminated and a substitute
custodian appointed therefor by the Trustee. Subject to this Article
VIII, the
Trustee agrees to comply with the terms of each custodial agreement and
to
enforce the terms and provisions thereof against the custodian for the
benefit
of the Certificateholders having an interest in any Mortgage File held
by such
custodian. Each custodian shall be a depository institution or trust
company
subject to supervision by federal or state authority, shall have combined
capital and surplus of at least $15,000,000 and shall be qualified to
do
business in the jurisdiction in which it holds any Mortgage File. The
Seller
shall pay from its own funds, without any right to reimbursement, the
fees,
costs and expenses of each custodian (including the costs of custodian’s
counsel). The Custodian shall also be entitled to the benefits of Section
3.27
hereof. The initial Custodian of the Mortgage Loans shall be Deutsche
Bank
National Trust Company.
SECTION
8.17. Limitation
of Liability of Trustee and Administrator; Indemnification.
The
Securities Administrator shall not at any time have any responsibility
or
liability for or with respect to the legality, validity and enforceability
of
the Yield Maintenance Agreement. The Securities Administrator shall not
have any
liability for any failure or delay in payments to it which are required
under
the Yield Maintenance Agreement where such failure or delay is due to
the
failure of delay of the Yield Maintenance Provider in making such payment
to the
Securities Administrator pursuant to the Yield Maintenance Agreement.
In
addition, notwithstanding anything to the contrary in the Yield Maintenance
Agreement, the Securities Administrator shall not be required to make
any
payment to the Yield Maintenance Provider. Any payment to the Yield Maintenance
Provider shall be paid on behalf of the Securities Administrator by Greenwich
Capital Markets, Inc. The Securities Administrator and its respective
directors,
officers, employees and agents shall be entitled to be indemnified and
held
harmless by the Trust Fund from and against any and all losses, claims,
expenses
or other liabilities that arise by reason of or in connection with the
performance or observance by the Securities Administrator of its duties
or
obligations under the Yield Maintenance Agreement except to the extent
that the
same is due to the Securities Administrator’s negligence, willful misconduct or
fraud.
127
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, two REMIC elections
shall
by made by the Trust Fund. The Trustee shall sign and the Securities
Administrator shall file such elections on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the
last day of
the calendar year in which the Certificates are issued. The regular interests
in
each REMIC created hereunder and the related residual interest shall
be as
designated in the Preliminary Statement. Following the Closing Date,
the
Securities Administrator shall apply to the Internal Revenue Service
for an
employer identification number for each REMIC created hereunder by means
of a
Form SS-4 or other acceptable method and shall file a Form 8811 with
the
Internal Revenue Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for each interest in any REMIC created hereby
shall be
the Latest Possible Maturity Date.
(c) Except
as
provided in subsection (d) of this Section 9.01, the Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each
REMIC
created hereunder, including but not limited to any professional fees
or
expenses related to audits or any administrative or judicial proceedings
with
respect to any such REMIC that involve the Internal Revenue Service or
state tax
authorities, but only to the extent that (i) such expenses are ordinary
or
routine expenses, including expenses of a routine audit but not expenses
of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or
willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including the Securities Administrator’s duties as tax return
preparer).
(d) The
Securities Administrator shall prepare and file, and the Trustee shall
sign all
of the federal and state tax and information returns of each REMIC created
hereunder (collectively, the “Tax Returns”) as the direct representative. The
expenses of preparing and filing such Tax Returns shall be borne by the
Securities Administrator. Notwithstanding the foregoing, the Securities
Administrator shall have no obligation to prepare, file or otherwise
deal with
partnership tax information or returns. In the event that partnership
tax
information or returns are required by the Internal Revenue Service,
the Seller,
at its own cost and expense, will prepare and file all necessary returns.
The
Internal Revenue Service has issued OID regulations under Sections 1271
to 1275
of the Code generally addressing the treatment of debt instruments issued
with
original issue discount. Under those regulations, debt issued to one
Person
generally is aggregated in determining if there is OID. Because certain
Classes
of Regular Certificates are expected to be issued to one Person (which
intends
to continue to hold the Regular Certificates indefinitely and, in any
case, for
at least 30 days), the Securities Administrator, on behalf of the Trust
Fund,
and upon receipt of written direction from the Depositor, will determine
the
existence and amount of any OID as if those Classes of Regular Certificates
were
one debt instrument and based solely on information provided by the Depositor
to
the Securities Administrator.
128
(e) The
Securities Administrator shall perform on behalf of each REMIC created
hereunder
all reporting and other tax compliance duties that are the responsibility
of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local
taxing
authority. Among its other duties, if required by the Code, the REMIC
Provisions
or other such guidance, the Securities Administrator, shall provide (i)
to the
Treasury or other governmental authority such information as is necessary
for
the application of any tax relating to the transfer of the Residual Certificate
to any disqualified organization and (ii) to the Certificateholders such
information or reports as are required by the Code or REMIC Provisions.
The
Securities Administrator, however, shall have no information or other
tax
reporting obligations with respect to the Final Maturity Reserve
Trust.
(f) Each
of
the Master Servicer, Trustee and the Securities Administrator (to the
extent
that the affairs of the REMICs are within such Person’s control and the scope of
its specific responsibilities under the Agreement) and the Holders of
Certificates shall take any action or cause any REMIC created hereunder
to take
any action necessary to create or maintain the status of any REMIC created
hereunder as a REMIC under the REMIC Provisions and shall assist each
other as
necessary to create or maintain such status. None of the Trustee, the
Securities
Administrator or the Holder of a Residual Certificate shall take any
action,
cause any REMIC created hereunder to take any action or fail to take
(or fail to
cause to be taken) any action that, under the REMIC Provisions, if taken
or not
taken, as the case may be, could result in an Adverse REMIC Event unless
the
Trustee and the Securities Administrator have received an Opinion of
Counsel (at
the expense of the party seeking to take such action) to the effect that
the
contemplated action will not result in an Adverse REMIC Event. In addition,
prior to taking any action with respect to any REMIC created hereunder
or the
assets therein, or causing any such REMIC to take any action which is
not
expressly permitted under the terms of this Agreement, any Holder of
the
Residual Certificate will consult with the Trustee, the Master Servicer,
the
Securities Administrator or their respective designees, in writing, with
respect
to whether such action could cause an Adverse REMIC Event to occur with
respect
to any such REMIC, and no such Person shall take any such action or cause
any
REMIC created hereunder to take any such action as to which the Securities
Administrator has advised it in writing that an Adverse REMIC Event could
occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes
imposed on
any REMIC created hereunder in which it owns the residual interest by
federal or
state governmental authorities. To the extent that such Trust Fund taxes
are not
paid by the Residual Certificateholder, the Securities Administrator
shall pay
any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate or, if no such
amounts
are available, out of other amounts held in the Distribution Account,
and shall
reduce amounts otherwise payable to holders of regular interests in such
REMIC,
as the case may be.
129
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each REMIC created hereunder on a calendar
year and
on an accrual basis.
(i) No
additional contributions of assets shall be made to any REMIC created
hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) None
of
the Trustee, the Master Servicer or the Securities Administrator shall
enter
into any arrangement by which any REMIC created hereunder will receive
a fee or
other compensation for services.
(k) The
Securities Administrator shall treat each of the Basis Risk Reserve Fund
and the
Yield Maintenance Account as an outside reserve fund within the meaning
of
Treasury Regulation Section 1.860G-2(h), and not as assets of any REMIC.
The
Holders of the Class X Certificates are the owners of the Basis Risk
Reserve
Fund and the Yield Maintenance Account. The Securities Administrator
shall treat
the rights of the Holders of the LIBOR Certificates to receive distributions
to
cover Basis Risk Shortfalls as payments under a cap contract written
by the
Holders of the Class X Certificates in favor of the related Holders of
the LIBOR
Certificates. Thus, the LIBOR Certificates shall be treated as representing
not
only ownership of regular interests in a REMIC, but also ownership of
an
interest in an interest rate cap contract. For purposes of determining
the issue
prices of the Certificates, the interest rate cap contracts shall be
assumed to
have a zero value unless and until required otherwise by an applicable
taxing
authority.
(l) The
Securities Administrator shall treat the Final Maturity Reserve Trust
as an
outside reserve fund within the meaning of Treasury Regulation Section
1.860G-2(h) owned by the holders of the Class C Certificates and not
assets of
any REMIC. The Class X Certificateholder shall be treated as the owner
of the
Final Maturity Reserve Trust and any payments made from the Final Maturity
Reserve Trust to beneficial owners of Certificates (other than the Class
X
Certificates) shall be treated for federal income tax purposes as payments
made
by the Class X Certificateholder in exchange for an interest in the Certificates
then owned by such beneficial owners.
(m) For
federal income tax purposes, upon any sale of the property held by the
Trust
Fund pursuant to Section 10.01(a) and any Premium Proceeds paid by the
Master
Servicer shall not be treated as a portion of the purchase price paid
for such
property but shall instead be treated as an amount paid by the Master
Servicer
to the Holder of the Class A-R Certificates pursuant to a cash-settled
call
option with respect to the property held by the Trust Fund.
SECTION
9.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose
of, or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the REMICs created hereunder pursuant
to Article
X of this Agreement, (iv) a substitution pursuant to Article II hereof
or (v) a
repurchase of Mortgage Loans as contemplated hereunder, nor acquire any
assets
for any REMIC created hereunder, nor sell or dispose of any investments
in the
Distribution Account for gain, nor accept any contributions to any REMIC
created
hereunder after the Closing Date, unless the Depositor and the Trustee
have
received an Opinion of Counsel (at the expense of the party causing such
sale,
disposition, or substitution) that such disposition, acquisition, substitution,
or acceptance will not result in an Adverse REMIC Event.
130
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee created
hereby
(other than the obligation of the Securities Administrator, as Paying
Agent, to
make certain payments to Certificateholders after the Final Distribution
Date
and the obligation of the Master Servicer to send certain notices as
hereinafter
set forth) shall terminate upon notice to the Trustee and the Securities
Administrator upon the earliest of (i) the Distribution Date on which the
Class Principal Balance of each Class of Certificates has been reduced
to zero,
(ii) the final payment or other liquidation of the last Mortgage Loan,
(iii) the optional purchase of the Mortgage Loans by the Terminator as
described in the following paragraph and (iv) the Latest Possible Maturity
Date. Notwithstanding the foregoing, in no event shall the trust created
hereby
continue beyond the expiration of 21 years from the death of the last
survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James’s, living on the date hereof.
Following
the date on which the aggregate of the Stated Principal Balances of the
Mortgage
Loans (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period)
on such
date is equal to or less than 1% of the Cut-off Date Aggregate Principal
(the
“Call Option Date”), the Master Servicer (in such context, the “Terminator”),
may, at its option, terminate this Agreement by purchasing, on the next
succeeding Distribution Date, all of the outstanding Mortgage Loans and
REO
Properties at a price equal to (A) the greater of (i) the aggregate Stated
Principal Balance of the Mortgage Loans (after giving effect to scheduled
payments of principal due during the related Due Period, to the extent
received
or advanced, and unscheduled collections of principal received during
the
related Prepayment Period) and the appraised value of the REO Properties
and
(ii) the fair market value of the Mortgage Loans and REO Properties (as
determined and as agreed upon by (x) the Terminator, (y) the Holders
of a
majority in Percentage Interest of the Class X Certificates and (z) if
the
Holders of the Regular Certificates will not receive all amounts due
and payable
as a result of the exercise of the option by the Terminator, the Trustee,
in
their good faith business judgment as of the close of business on the
third
Business Day next preceding the date upon which notice of any such termination
is furnished to the related Certificateholders pursuant to Section 10.01(b)),
plus
(B) in
each case, accrued and unpaid interest thereon at the weighted average
of the
Mortgage Rates through the end of the Due Period preceding the Final
Distribution Date, plus any unreimbursed Servicing Advances and Advances
and any
unpaid Master Servicing Fees or Servicing Fees allocable to such Mortgage
Loans
and REO Properties and all amounts, if any, then due and owing to the
Trustee,
the Master Servicer and the Securities Administrator under this Agreement,
plus
any
Basis Risk Shortfalls then remaining unpaid or which is due to the exercise
of
such option (the “Termination Price”); provided,
however,
such
option may only be exercised if the Termination Price is sufficient to
result in
the payment of all interest accrued on, as well as amounts necessary
to retire
the Class Principal Balance of, each Class of Certificates issued pursuant
to
this Agreement. If the fair market value of the Mortgage Loans and REO
Properties shall be required to be made and agreed upon by the Master
Servicer,
if it is Terminator, and the Holders of a majority of Percentage Interest
of the
Class X Certificates as provided in (ii) above in their good faith business
judgment, and such determination shall take into consideration an appraisal
of
the value of the Mortgage Loans and REO Properties conducted by an independent
appraiser mutually agreed upon by the Master Servicer, if it is the Terminator,
the Holders of a majority in Percentage Interest of the Class X Certificates
and
the Terminator in their reasonable discretion, such appraisal to be obtained
by
the Holders of a majority in Percentage Interest of the Class X Certificates
at
their expense, and (A) such appraisal shall be obtained at no expense
to the
Trustee and (B) the Trustee may conclusively rely on, and shall be protected
in
relying on, such fair market value determination.
131
In
connection with any such purchase pursuant to the preceding paragraph,
the
Master Servicer shall deposit in the Distribution Account all amounts
then on
deposit in the Collection Account, which deposit shall be deemed to have
occurred immediately preceding such purchase.
(b) Notice
of
any termination pursuant to the second paragraph of Section 10.01(a),
specifying
the Distribution Date (which shall be a date that would otherwise be
a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Certificate Registrar for payment of the final distribution
and cancellation, shall be given promptly by the Trustee upon the Trustee
receiving notice of such date from the Master Servicer by letter to the
Certificateholders mailed not earlier than the 10th day and not later than
the 19th day of the month immediately preceding the month of such final
distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon presentation and surrender
of
such Certificates at the office or agency of the Certificate Registrar
therein
designated, (2) the amount of any such final distribution and (3) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender
of the
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Certificate Registrar
and
the Yield Maintenance Counterparty at the time such notice is given to
Holders
of the Certificates. Upon any such termination, the duties of the Certificate
Registrar with respect to the Certificates shall terminate and the Securities
Administrator shall terminate the Distribution Account and any other
account or
fund maintained with respect to the Certificates, subject to the Securities
Administrator’s obligation hereunder to hold all amounts payable to
Certificateholders in trust without interest pending such payment.
132
(c) Upon
presentation and surrender of the Certificates, the Securities Administrator,
as
Paying Agent shall cause to be distributed to the Holders of the Certificates
on
the Distribution Date for such final distribution, in proportion to the
Percentage Interests of their respective Class and to the extent that
funds are
available for such purpose, an amount equal to the amount required to
be
distributed to such Holders in accordance with the provisions of
Section 5.01 hereof for such Distribution Date.
(d) In
the
event that all Certificateholders shall not surrender their Certificates
for
final payment and cancellation on or before such Final Distribution Date,
the
Securities Administrator shall promptly following such date cause all
funds in
the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for
the
benefit of such Certificateholders, and within six months, the Securities
Administrator shall give a second written notice to the remaining
Certificateholders to surrender their Certificates for cancellation and
receive
the final distribution with respect thereto. If within nine months after
the
second notice all the Certificates shall not have been surrendered for
cancellation, the Master Servicer shall be entitled to all unclaimed
funds and
other assets which remain subject hereto, and the Securities Administrator
upon
transfer of such funds shall be discharged of any responsibility for
such funds,
and the Certificateholders shall look to the Master Servicer for
payment.
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
Fund shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee, at the direction of the Securities Administrator shall sell
any
remaining assets of the Trust Fund to HarborView Mortgage Loan Trust
2006-13 or
its designee or Xxxxx Fargo Bank, N.A., or its designee, as the case
may be, for
cash and, within 90 days of such sale, the Securities Administrator shall
distribute to (or credit to the account of) the Certificateholders the
proceeds
of such sale together with any cash on hand (less amounts retained to
meet
claims) in complete liquidation of the Trust Fund and each REMIC created
hereunder; and
(ii) The
Securities Administrator shall attach a statement to the final federal
income
tax return for each REMIC created hereunder stating that pursuant to
Treasury
Regulation §1.860F-1, the first day of the 90-day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the Trust
Fund and
shall satisfy all requirements of a qualified liquidation under Section
860F of
the Code and any regulations thereunder as evidenced by an Opinion of
Counsel
delivered to the Trustee and the Securities Administrator obtained at
the
expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint
the
Trustee and the Securities Administrator as their attorneys in fact to
undertake
the foregoing steps.
133
ARTICLE
XI
DISPOSITION
OF TRUST FUND ASSETS
SECTION
11.01. Disposition
of Trust Fund Assets.
Neither
the Trust Fund, nor this Agreement, may be terminated or voided, or any
disposition of the assets of the Trust Fund effected, other than in accordance
with the terms hereof, except to the extent that Holders representing
no less
than the entire beneficial ownership interest of the Certificates have
consented
in writing to such action.
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Seller, the Depositor,
the
Master Servicer, the Securities Administrator, the Credit Risk Manager
and the
Trustee, without the consent of the Certificateholders, (i) to cure any
ambiguity, (ii) to correct or supplement any provisions herein which may be
defective or inconsistent with any other provisions herein, (iii) to make
any other provisions with respect to matters or questions arising under
this
Agreement, which shall not be inconsistent with the provisions of this
Agreement, or (iv) to conform the terms hereof to the description thereof
provided in the Prospectus or the Private Placement Memorandum, as applicable;
provided,
however,
that
any such action listed in clause (i) through (iii) above shall not
adversely affect in any material respect the interests of any Certificateholder;
provided,
further,
that
any such action list in (i) through (iii) above shall be deemed not to
adversely
affect in any material respect the interests of any Certificateholder,
if
evidenced by (i) written notice to the Depositor, the Seller, the Master
Servicer, the Securities Administrator, the Credit Risk Manager and the
Trustee
from each Rating Agency that such action will not result in the reduction
or
withdrawal of the rating of any outstanding Class of Certificates with
respect
to which it is a Rating Agency or (ii) an Opinion of Counsel to the effect
that such amendment shall not adversely affect in any material respect
the
interests of any Certificateholder, is permitted by the Agreement and
all the
conditions precedent, if any have been complied with, delivered to the
Master
Servicer, the Securities Administrator and the Trustee.
In
addition, this Agreement may be amended from time to time by Seller,
the
Depositor, the Master Servicer, the Securities Administrator, the Credit
Risk
Manager and the Trustee and with the consent of the Majority Certificateholders
for the purpose of adding any provisions to or changing in any manner
or
eliminating any of the provisions of this Agreement or of modifying in
any
manner the rights of the Holders of Certificates; and subject, in the
case of
any amendment or modification to Section 8.16 hereof, to the consent
of Deutsche
Bank National Trust Company, as Custodian; provided,
however,
that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
delay the timing of, payments on the Certificates that are required to
be made
on any Certificate without the consent of the Holder of such Certificate,
(y) adversely affect in any material respect the interests of the Holders
of any Class of Certificates in a manner other than as described in clause
(x)
above, without the consent of the Holders of Certificates of such Class
evidencing at least a 662/3%
Percentage Interest in such Class, or (z) reduce the percentage of Voting
Rights required by clause (y) above without the consent of the Holders of
all Certificates of such Class then outstanding. Upon approval of an
amendment,
a copy of such amendment shall be sent to each Rating Agency.
134
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not
consent
to any amendment to this Agreement unless it shall have first received
an
Opinion of Counsel, delivered by and at the expense of the Person seeking
such
Amendment (unless such Person is the Trustee, in which case the Trustee
shall be
entitled to be reimbursed for such expenses by the Trust Fund pursuant
to
Section 8.05 hereof), to the effect that such amendment will not result
in an
Adverse REMIC Event and that the amendment is being made in accordance
with the
terms hereof, such amendment is permitted by this Agreement and all conditions
precedent, if any, have been complied with.
Promptly
after the execution of any such amendment the Trustee shall furnish,
at the
expense of the Person that requested the amendment if such Person is
the Seller
(but in no event at the expense of the Securities Administrator or the
Trustee),
otherwise at the expense of the Trust Fund, a copy of such amendment
and the
Opinion of Counsel referred to in the immediately preceding paragraph
to the
Master Servicer and each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be
subject to
such reasonable regulations as the Trustee may prescribe.
The
Trustee, the Master Servicer and the Securities Administrator may, but
shall not
be obligated to, enter into any amendment pursuant to this 12.01 Section
that affects its rights, duties and immunities under this Agreement or
otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or
elsewhere,
such recordation to be effected by the Trustee at the expense of the
Trust Fund,
but only upon direction of Certificateholders accompanied by an Opinion
of
Counsel to the effect that such recordation materially and beneficially
affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in
any number
of counterparts, each of which counterparts shall be deemed to be an
original,
and such counterparts shall together constitute but one and the same
instrument.
135
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust Fund, (ii) entitle such Certificateholder’s
legal representatives or heirs to claim an accounting or to take any
action or
proceeding in any court for a partition or winding up of the Trust Fund
or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right
to vote
or in any manner otherwise control the operation and management of the
Trust
Fund, or the obligations of the parties hereto, nor shall anything herein
set
forth or contained in the terms of the Certificates be construed so as
to
constitute the Certificateholders from time to time as partners or members
of an
association; nor shall any Certificateholder be under any liability to
any third
person by reason of any action taken by the parties to this Agreement
pursuant
to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of
this
Agreement to institute any suit, action or proceeding in equity or at
law upon
or under or with respect to this Agreement, unless such Holder previously
shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written
request
upon the Trustee to institute such action, suit or proceeding in its
own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities
to be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of such notice, request and offer of indemnity, shall have neglected
or refused
to institute any such action, suit or proceeding an no direction inconsistent
with such written request has been given the Trustee by such Certificateholder.
It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder, the Securities
Administrator and the Trustee, that no one or more Holders of Certificates
shall
have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of
any other
of such Certificates, or to obtain or seek to obtain priority over or
preference
to any other such Holder, which priority or preference is not otherwise
provided
for herein, or to enforce any right under this Agreement, except in the
manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions
of this
Section 12.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
SECTION
12.04. Governing
Law; Jurisdiction.
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.
136
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall
be
deemed to have been duly given if personally delivered at or mailed by
first
class mail, postage prepaid, or by express delivery service, to (a) in the
case of the Seller, to Greenwich Capital Financial Products, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: General
Counsel (telecopy number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Master Servicer,
the
Securities Administrator and the Trustee in writing by the Seller, (b)
in the
case of the Trustee, to Deutsche Bank National Trust Company, 0000 Xxxx
Xx.
Xxxxxx Xxxxx, Xxxxx Xxx, XX 00000-0000, Attention: HarborView 2006-13
(telecopy
number (000) 000-0000), with a copy to the Corporate Trust Office or
such other
address or telecopy number as may hereafter be furnished to the Depositor,
the
Master Servicer, the Securities Administrator and the Seller in writing
by the
Trustee, (c) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Legal (telecopy number (000) 000-0000), or such other address or
telecopy number as may be furnished to the Seller, the Master Servicer,
the
Securities Administrator and the Trustee in writing by the Depositor,
(d) in the
case of the Credit Risk Manager, Xxxxxxx Fixed Income Services Inc.,
0000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel,
and (e) in the case of the Master Servicer or the Securities Administrator,
for
certificate transfer purposes, at its Corporate Trust Office and for
all other
purposes at X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, or for overnight delivery,
at
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: HarborView
Trust
2006-13, Facsimile no.: (000) 000-0000, or such other address or telecopy
number
as may be furnished to the Depositor, the Seller and the Trustee in writing
by
the Master Servicer or the Securities Administrator, as applicable. Any
notice
required or permitted to be mailed to a Certificateholder shall be given
by
first class mail, postage prepaid, at the address of such Holder as shown
in the
Certificate Register. Notice of any Event of Default shall be given by
telecopy
and by certified mail. Any notice so mailed within the time prescribed
in this
Agreement shall be conclusively presumed to have duly been given when
mailed,
whether or not the Certificateholder receives such notice. A copy of
any notice
required to be telecopied hereunder shall also be mailed to the appropriate
party in the manner set forth above. Any notice required to be delivered
by the
Securities Administrator to the Depositor pursuant to Section 3.19 may
be
delivered by the Securities Administrator, notwithstanding any provision
of this
Agreement to the contrary, to Greenwich Capital Acceptance, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx
(telephone number (000) 000-0000; fax number (000) 000-0000; e-mail
xxxx.xxxxxxx@xxx.xxx), or such other address or telecopy number as may
be
furnished to the Securities Administrator in writing by the
Depositor.
SECTION
12.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this
Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall
in no way
affect the validity or enforceability of the other provisions of this
Agreement
or of the Certificates or the rights of the Holders thereof.
137
SECTION
12.07. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.08. Notices
to the Rating Agencies.
(a) The
Securities Administrator shall be obligated to use its best reasonable
efforts
promptly to provide notice to the Rating Agencies with respect to each
of the
following of which a Responsible Officer of the Securities Administrator
has
actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured or
waived;
(iii) the
resignation or termination of the Master Servicer, the Securities Administrator
or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class; and
(v) any
change in the location of any Account.
(b) If
the
Trustee is acting as a successor Master Servicer pursuant to Section
7.02
hereof, the Trustee shall notify the Rating Agencies of any event that
would
result in the inability of the Trustee to make Advances as successor
Master
Servicer.
(c) The
Securities Administrator shall promptly furnish to each Rating Agency
copies of
the following, unless such documents were made available on the Securities
Administrator’s website:
(i) each
Distribution Date Statement described in Section 5.04 hereof;
(ii) each
annual statement as to compliance described in Section 3.05 hereof;
(iii) each
annual assessment of compliance and attestation report described in Section
3.17
hereof; and
(iv) each
notice delivered to the Securities Administrator pursuant to Section
5.05(b)
hereof which relates to the fact that the Master Servicer has not made
an
Advance.
(d) All
notices to the Rating Agencies provided for in this Agreement shall be
in
writing and sent by first class mail, telecopy or overnight courier,
as
follows:
138
If
to
Fitch, to:
Fitch
Ratings, Inc.
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
If
to
S&P, to:
Standard
& Poor’s Ratings Services,
a
division of The XxXxxx-Xxxx Companies, Inc.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
SECTION
12.09. Further
Assurances.
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment
or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including
reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
12.10. Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall
give to
any Person, other than the Certificateholders and the parties hereto
and their
successors hereunder, any benefit or any legal or equitable right, remedy
or
claim under this Agreement.
SECTION
12.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or
other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent
duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee or the Securities
Administrator and, where expressly required under this Agreement, to
the Master
Servicer. Such instrument or instruments (and the action embodied therein
and
evidenced thereby) are herein sometimes referred to as the “act” of the
Certificateholders signing such instrument or instruments. Proof of execution
of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor
of the
Trustee and the Trust Fund if made in the manner provided in this
Section 12.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is
by a
signer acting in a capacity other than his or her individual capacity,
such
certificate or affidavit shall also constitute sufficient proof of his
authority.
139
(c) Any
request, demand, authorization, direction, notice, consent, waiver or
other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect
of
anything done, omitted or suffered to be done by the Trustee or the Trust
Fund
in reliance thereon, whether or not notation of such action is made upon
such
Certificate.
SECTION
12.12. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
SECTION
12.13. Provision
of Information.
For
so
long as any of the Certificates of any Class are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Depositor
agrees to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder
or
prospective purchaser, any information required to be provided to such
holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act.
The
Securities Administrator shall provide to any person to whom a Prospectus
or
Private Placement Memorandum was delivered by Greenwich Capital Markets,
Inc.
(as identified by Greenwich Capital Markets, Inc.), upon the request
of such
person specifying the document or documents requested (and certifying
that it is
a Person entitled hereunder), (i) a copy (excluding exhibits) of any
report on
Form 8-K, Form 10-D or Form 10-K filed with the Securities and Exchange
Commission pursuant to this Agreement and (ii) a copy of any other document
incorporated by reference in the Prospectus or Private Placement Memorandum
(to
the extent in the Securities Administrator’s possession). Any reasonable
out-of-pocket expenses incurred by the Securities Administrator in providing
copies of such documents shall be reimbursed by the Depositor.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
140
IN
WITNESS WHEREOF, the parties hereto have caused their names to be signed
hereto
by their respective officers thereunto duly authorized, all as of the
day and
year first above written.
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as
Depositor
By:
/s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC., as
Seller
By:
/s/ Xxxxxx Xxxxxxxxxxx
Name: Xxxxxx Xxxxxxxxxxx
Title:
Senior Vice President
XXXXX
FARGO BANK, N.A., as Master Servicer
and
as Securities Administrator
By:
/s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title:
Assistant Vice President
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee and as Custodian
By:
/s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title:
Authorized Xxxxxx
XXXXXXX
FIXED INCOME SERVICES INC.,
as
Credit
Risk Manager
By:
/s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title:
Authorized Representative
EXHIBIT
A-1
FORM
CLASS A CERTIFICATE
CLASS
A
CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
IF
THE
RATING OF THIS CERTIFICATE IS BELOW “BBB-” OR ITS EQUIVALENT WHEN IT IS
ACQUIRED, THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED
TO
HAVE REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION
4975 OF THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT THE TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING
THIS CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT”
AS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60 AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PTCE 95-60.
ON
OR
PRIOR TO THE TERMINATION OF THE YIELD MAINTENANCE AGREEMENT AND THE FINAL
MATURITY RESERVE TRUST, THIS CERTIFICATE MAY NOT BE ACQUIRED BY A TRANSFEREE
FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975 OF THE INTERNAL REVENUE CODE
OF
1986, AS AMENDED (THE “CODE”) OR BY ANY ENTITY DEEMED TO HOLD THE PLAN ASSETS OF
THE FOREGOING, UNLESS IT REPRESENTS AND WARRANTS THAT THE ACQUISITION AND
HOLDING OF SUCH CERTIFICATE, THROUGHOUT THE PERIOD THAT IT HOLDS SUCH
CERTIFICATE, WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED BY
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23, THE NON-FIDUCIARY SERVICE PROVIDER EXEMPTION UNDER
SECTION 408(b)(17) OF ERISA OR SOME OTHER APPLICABLE EXEMPTION. EACH INVESTOR
IN
THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN COMPLIANCE WITH
THE
FOREGOING AND WILL FURTHER BE DEEMED TO REPRESENT, WARRANT AND COVENANT THAT
IT
WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER SUCH CERTIFICATE IN VIOLATION OF
THE
FOREGOING.
A-1-1
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE CODE.
|
Certificate
No.:
|
1
|
|
Cut-Off
Date:
|
November
1, 2006
|
|
First
Distribution Date:
|
December
19, 2006
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate
|
|
|
(“Denomination”):
|
$380,792,000
|
|
Original
Class
|
|
|
Principal
Balance of this
|
|
|
Class:
|
$380,792,000
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP:
|
41162K
AA 1
|
|
Class:
|
A
|
| Assumed Final Distribution Date: |
June
2036
|
A-1-2
HarborView
Mortgage Loan Trust,
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Class
A
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the pooling and servicing agreement dated as of November 1, 2006 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”) and as securities administrator (in such capacity, the
“Securities Administrator”), Xxxxxxx Fixed Income Services, Inc., as credit risk
manager (the “Credit Risk Manager”) and Deutsche Bank National Trust Company, as
trustee (in such capacity, the “Trustee”) and custodian. Accordingly, the
Certificate Principal Balance of this Certificate at any time may be less than
the Initial Certificate Principal Balance set forth on the face hereof, as
described herein. This Certificate does not evidence an obligation of, or an
interest in, and is not guaranteed by the Depositor, the Seller or the Trustee
referred to below or any of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Principal Balance) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by the Depositor. The Trust Fund was created pursuant to the
Agreement. To the extent not defined herein, capitalized terms used herein
have
the meanings assigned to them in the Agreement. This Certificate is issued
under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator and the Certificate Registrar.
A-1-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December ___, 2006
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
_____________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
A-1-4
HARBORVIEW
MORTGAGE LOAN TRUST 2006-13
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Reverse
Certificate
This
Certificate is one of a duly authorized issue of Certificates designated as
HarborView Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates, Series
2006-13 (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholder for any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, distributions will be made on the 19th day of
each month, or if the 19th day is not a Business Day, then on the next
succeeding Business Day (the “Distribution Date”), commencing on the
Distribution Date in December 2006,
to
the Person in whose name this Certificate is registered at the close of business
on the applicable Record Date in an amount equal to the product of the
Percentage Interest evidenced by this Certificate and the amount required to
be
distributed to Holders of Certificates of the Class to which this Certificate
belongs on such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made, (i) in the case of a Physical Certificate,
by
check or money order mailed to the address of the person entitled thereto as
it
appears on the Certificate Register or, upon the request of a Certificateholder,
by wire transfer as set forth in the Agreement and (ii) in the case of a
Book-Entry Certificate, to the Depository, which shall credit the amounts of
such distributions to the accounts of its Depository Participants in accordance
with its normal procedures. The final distribution on each Certificate shall
be
made in like manner, but only upon presentment and surrender of such Certificate
at the office or agency of the Certificate Registrar specified in the notice
to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights of the Certificateholders under
the
Agreement at any time, by the Depositor, the Seller, the Master Servicer, the
Securities Administrator, the Credit Risk Manager and the Trustee, and Holders
of the requisite percentage of the Percentage Interests of each Class of
Certificates affected by such amendment, as specified in the Agreement. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
A-1-5
As
provided in the Agreement and subject to certain limitations therein set
forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the office or agency maintained by the Certificate Registrar
accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees. The Certificates are issuable only as registered
Certificates without coupons in denominations specified in the Agreement.
As
provided in the Agreement and subject to certain limitations set forth therein,
Certificates are exchangeable for new Certificates of the same Class in
authorized denominations and evidencing the same aggregate Percentage Interest,
as requested by the Holder surrendering the same. No service charge will
be made
for any such registration of transfer or exchange, but the Certificate Registrar
may require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Subject
to the terms of the Agreement, each Class of Book-Entry Certificates will be
registered as being held by the Depository or its nominee and beneficial
interests will be held by Certificate Owners through the book-entry facilities
of the Depository or its nominee in minimum denominations of $25,000 and
integral dollar multiples of $1 in excess thereof; provided,
that,
such
certificates must be purchased in minimum total investments of at least
$100,000.
The
Class
P Certificates shall be issued in a minimum Percentage Interest of 5% and in
integral percentage of multiples of 1% in excess thereof.
The
Class
A-R Certificate shall be issued as a single certificate and will be maintained
in physical form.
The
Depositor, the Seller, the Trustee, the Certificate Registrar and any agent
of
the foregoing may treat the Person in whose name this Certificate is registered
as the owner hereof for all purposes, and none of the Depositor, the Seller,
the
Trustee, the Certificate Registrar or any agent of any of them shall be affected
by any notice to the contrary.
On
any
Distribution Date following the date on which the aggregate of the Stated
Principal Balances of the Mortgage Loans on such date is equal to or less than
1% of the Cut-Off Date Aggregate Principal Balance, the Master Servicer may,
at
its option, terminate the Agreement by purchasing all of the outstanding
Mortgage Loans and REO Properties at the Termination Price as provided in the
Agreement. In the event that the Master Servicer does not exercise its right
of
optional termination, the obligations and responsibilities created by the
Agreement will terminate upon the earliest of (i) the Distribution Date on
which
the Class Principal Balance of each Class of Certificates has been reduced
to
zero, (ii) the final payment or other liquidation of the last Mortgage Loan
and
(iii) the Latest Possible Maturity Date.
To
the
extent not defined herein, capitalized terms used herein have the meanings
assigned to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
A-1-6
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_____________________________________________________________________________________________
_____________________________________________________________________________________________
(Please
print or typewrite name and address including postal ZIP code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_____________________________________________________________________________.
Dated:
_____________
____________
Signature
by or on behalf of assignor
A-1-7
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to__________________________________________________________________________________
for
the
account
of______________________________________________________________________,
account
number ________________________, or, if mailed by check, to
___________________ ________________________________________________________________
Applicable
statements should be mailed to
___________________________________________________
____________________________________________________________________________________.
This
information is provided by
_____________________________________________________,
the
assignee named above, or
_____________________________________________________________,
as
its
agent.
X-0-0
XXXXXXX
X-0
FORM
OF CLASS X CERTIFICATE
CLASS
X
CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
IF
THE
RATING OF THIS CERTIFICATE IS BELOW “BBB-” OR ITS EQUIVALENT WHEN IT IS
ACQUIRED, THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED
TO
HAVE REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE
BENEFIT PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION
4975 OF THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY
SUCH PLAN OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO
EFFECT THE TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN
ERISA-QUALIFYING UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING
THIS CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT”
AS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”)
95-60 AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER
SECTIONS I AND III OF PTCE 95-60.
PRINCIPAL
WILL NOT BE DISTRIBUTABLE IN RESPECT OF THIS CERTIFICATE. INTEREST IS CALCULATED
ON THIS CERTIFICATE BASED ON A NOTIONAL AMOUNT DETERMINED AS DESCRIBED IN THE
AGREEMENT. THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY TIME
MAY
BE LESS THAN THE INITIAL CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE AS
SET
FORTH HEREON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
A-2-1
|
Cut-off
Date:
|
November
1, 2006
|
|
First
Distribution Date:
|
December
19, 2006
|
|
Initial
Certificate Notional
|
|
|
Amount
of this Certificate
|
|
|
(“Denomination”):
|
$397,112,000.00
|
|
Original
Class
|
|
|
Notional
Amount of this
|
|
|
Class:
|
$397,112,000.00
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP:
|
41162K
AB 9
|
|
Class:
|
X
|
|
Assumed
Final Distribution Date:
|
June
2036
|
A-2-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Class
X
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, or the Trustee referred to below or
any
of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Principal Balance) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by Greenwich Capital Acceptance, Inc. (the “Depositor”). The
Trust Fund was created pursuant to a pooling and servicing agreement dated
as of
November 1, 2006 (the “Agreement”) among Greenwich Capital Acceptance, Inc., as
depositor (the “Depositor”), Greenwich Capital Financial Products, Inc., as
seller (the “Seller”), Xxxxx Fargo Bank, N.A., as master servicer and as
securities administrator (in such capacity, the “Securities Administrator”),
Xxxxxxx Fixed Income Services, Inc., as credit risk manager and Deutsche Bank
National Trust Company, as trustee (in such capacity, the “Trustee”) and as
custodian. To the extent not defined herein, the capitalized terms used herein
have the meanings assigned in the Agreement. This Certificate is issued under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Securities Administrator and the Certificate Registrar.
A-2-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December ___, 2006
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
______________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
A-2-4
EXHIBIT
B
FORM
OF CLASS A-R CERTIFICATE
CLASS
A-R
CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE CERTIFICATE REGISTRAR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER, OR (B) A REPRESENTATION THAT THE PURCHASER IS AN INSURANCE COMPANY
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY
GENERAL ACCOUNT” AS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (“PTCE 95-60”) AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE-95-60, OR (C) AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO ERISA OR TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
B-1
|
Certificate
No.:
|
1
|
|
Cut-off
Date:
|
November
1, 2006
|
|
First
Distribution Date:
|
December
19, 2006
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate:
|
$100
|
|
Original
Class Certificate
|
Principal
Balance of this
|
|
Class:
|
$100
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP:
|
41162K
AC 7
|
|
Class:
|
A-R
|
|
Assumed
Final Distribution Date:
|
June
2036
|
B-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Class
A-R
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller or the Trustee referred to below or
any
of their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust Fund consisting primarily of the Mortgage Loans deposited
by
Greenwich Capital Acceptance, Inc. (the “Depositor”). The Trust Fund was created
pursuant to a pooling and servicing agreement dated as of November 1, 2006
(the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer (in such capacity, the
“Master Servicer”) and as securities administrator (in such capacity, the
“Securities Administrator”), Xxxxxxx Fixed Income Services, Inc., as credit risk
manager and Deutsche Bank National Trust Company, as trustee (in such capacity,
the “Trustee”) and as custodian. To the extent not defined herein, the
capitalized terms used herein have the meanings assigned in the Agreement.
This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Certificate at the Corporate
Trust Office of the Certificate Registrar or the office or agency maintained
by
the Certificate Registrar.
No
transfer of this Certificate shall be made unless the Certificate Registrar
shall have received either (i) a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor and in substantially the form attached
to the Agreement, to the effect that such transferee is not an employee benefit
or other plan or arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), nor a person acting on
behalf or investing plan assets of any such plan or arrangement, which
representation letter shall not be an expense of the Certificate Registrar
or
the Trustee, or (ii) a representation that the purchaser is an insurance company
which is purchasing such Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60,
or (iii) an Opinion of Counsel in accordance with the provisions of the
Agreement. Notwithstanding anything else to the contrary herein, any purported
transfer of this Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the opinion of counsel satisfactory to the
Certificate Registrar as described above shall be void and of no
effect.
B-3
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee and the
Certificate Registrar of (a) a transfer affidavit of the proposed transferee
and
(b) a transfer certificate of the transferor, each of such documents to be
in
the form described in the Agreement, (iii) each person holding or acquiring
any
Ownership Interest in this Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee and the
Certificate Registrar as required pursuant to the Agreement, (iv) each person
holding or acquiring an Ownership Interest in this Certificate must agree not
to
transfer an Ownership Interest in this Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any attempted
or purported transfer of any Ownership Interest in this Certificate in violation
of such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee. The Securities Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to compute
the tax imposed under the applicable tax laws on transfers of residual interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest in this Certificate in violation of the
restrictions mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Securities Administrator and the Certificate Registrar.
B-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December ___, 2006
XXXXX
FARGO BANK, N.A.,
asSecurities
Administrator
By
________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
B-5
HARBORVIEW
MORTGAGE LOAN TRUST
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Reverse
Certificate
This
Certificate is one of a duly authorized issue of Certificates designated as
HarborView Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates, Series
2006-13 (herein collectively called the “Certificates”), and representing a
beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that neither the the Trustee nor the Securities Administrator
are
liable to the Certificateholders for any amount payable under this Certificate
or the Agreement or, except as expressly provided in the Agreement, subject
to
any liability under the Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee, the Certificate Registrar and the Securities
Administrator.
Pursuant
to the terms of the Agreement, distributions will be made on the 19th
day of
each month, or if the 19th
day is
not a Business Day, then on the next succeeding Business Day (the “Distribution
Date”), commencing on the Distribution Date in December 2006, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made, (i) in the case of a Physical Certificate,
by
check or money order mailed to the address of the person entitled thereto as
it
appears on the Certificate Register or, upon the request of a Certificateholder,
by wire transfer as set forth in the Agreement and (ii) in the case of a
Book-Entry Certificate, to the Depository, which shall credit the amounts of
such distributions to the accounts of its Depository Participants in accordance
with its normal procedures. The final distribution on each Certificate shall
be
made in like manner, but only upon presentment and surrender of such Certificate
at the office or agency of the Certificate Registrar specified in the notice
to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights of the Certificateholders under
the
Agreement at any time, by the Depositor, the Seller, the Master Servicer, the
Securities Administrator, the Credit Risk Manager and the Trustee and Holders
of
the requisite percentage of the Percentage Interests of each Class of
Certificates affected by such amendment, as specified in the Agreement. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
B-6
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the office or agency maintained by the Certificate Registrar
accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
The
Class
A-R Certificate is issuable as a single certificate in physical form only in
a
Percentage Interest of 100%.
The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.
No
service charge will be made for any such registration of transfer or exchange,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection
therewith.
The
Depositor, the Seller, the Master Servicer, the Securities Administrator, the
Trustee, the Certificate Registrar and any agent of the foregoing may treat
the
Person in whose name this Certificate is registered as the owner hereof for
all
purposes, and none of the Depositor, the Seller, the Trustee and the Certificate
Registrar or any agent of any of them shall be affected by any notice to the
contrary.
On
any
Distribution Date on which the aggregate of the Stated Principal Balances of
the
Mortgage Loans immediately after such date is equal to or less than 1% of the
Cut-off Date Aggregate Principal Balance, the Master Servicer may, at its
option, terminate the Agreement by purchasing, on such Distribution Date, all
of
the outstanding Mortgage Loans and REO Properties at the Termination Price
as
provided in the Agreement. In the event that the Master Servicer does not
exercise its right of optional termination, the obligations and responsibilities
created by the Agreement will terminate upon the earliest of (i) the
Distribution Date on which the Class Principal Balance of each Class of
Certificates has been reduced to zero, (ii) the final payment or other
liquidation of the last Mortgage Loan and (iii) the Latest Possible Maturity
Date.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
B-7
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_______________________________________________________________________________________________________
_______________________________________________________________________________________________________
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_____________________________________________________________________________.
Dated:
_____________
____________
Signature
by or on behalf of assignor
B-8
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to__________________________________________________________________________________
for
the
account
of______________________________________________________________________,
account
number ________________________, or, if mailed by check, to
___________________ ________________________________________________________________
Applicable
statements should be mailed to
___________________________________________________
____________________________________________________________________________________.
This
information is provided by
_____________________________________________________,
the
assignee named above, or
_____________________________________________________________,
as
its
agent.
B-9
EXHIBIT
C
FORM
OF SUBORDINATE CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF
THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER OR (B) THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS
CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS
DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60
AND THAT THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS
I AND III OF PTCE 95-60.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
|
Certificate
No.:
|
1
|
|
Cut-Off
Date:
|
November
1, 2006
|
|
First
Distribution Date:
|
December
19, 2006
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate
|
|
|
(“Denomination”):
|
$[
|
|
Original
Class Certificate
|
|
|
Principal
Balance of this
|
|
|
Class:
|
$[
|
|
Percentage
Interest:
|
100%
|
|
Pass-Through
Rate:
|
Variable
|
|
CUSIP:
|
41162K
[ ]
|
|
Class:
|
B-[
]
|
|
Assumed
Final Distribution Date:
|
June
2036
|
C-1
HarborView
Mortgage Loan Trust,
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Class
B-[
]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the pooling and servicing agreement dated as of November 1, 2006 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer and as securities
administrator (in such capacity, the “Securities Administrator”), Xxxxxxx Fixed
Income Services, Inc., as credit risk manager and Deutsche Bank National Trust
Company, as trustee (in such capacity, the “Trustee”) and as custodian.
Accordingly, the Certificate Principal Balance of this Certificate at any time
may be less than the Initial Certificate Principal Balance set forth on the
face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Principal Balance) in certain monthly
distributions with respect to a Trust Fund consisting primarily of the Mortgage
Loans deposited by the Depositor. The Trust Fund was created pursuant to the
Agreement. To the extent not defined herein, capitalized terms used herein
have
the meanings assigned to them in the Agreement. This Certificate is issued
under
and is subject to the terms, provisions and conditions of the Agreement, to
which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Trustee and Certificate Registrar.
C-2
IN
WITNESS WHEREOF, the Securities Administrator and Certificate Registrar has
caused this Certificate to be duly executed.
Dated:
December ___, 2006
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
_________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
______________________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Certificate Registrar
C-3
EXHIBIT
D
FORM
OF CLASS P CERTIFICATE
CLASS
P
CERTIFICATE
THIS
CERTIFICATE DOES NOT EVIDENCE AN INTEREST IN ANY REMIC CREATED PURSUANT TO
THE
AGREEMENT REFERENCED HEREIN.
THE
HOLDER OF THIS CERTIFICATE WILL BE ENTITLED TO CERTAIN DISTRIBUTIONS AS PROVIDED
IN THE AGREEMENT.
THIS
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, (THE “1933 ACT”) OR ANY STATE SECURITIES LAWS. NEITHER THIS CERTIFICATE
NOR ANY INTEREST HEREIN MAY BE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION,
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER SUCH CERTIFICATE ONLY (A) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT OR (B) TO A
“QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A, AS EVIDENCED BY AN
INVESTMENT LETTER DELIVERED BY THE TRANSFEREE TO THE CERTIFICATE REGISTRAR,
IN
SUBSTANTIALLY THE FORM ATTACHED TO THE AGREEMENT.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
CERTIFICATE REGISTRAR SHALL HAVE RECEIVED EITHER (A) A REPRESENTATION LETTER
TO
THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO
SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE CODE OR A
PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR ARRANGEMENT OR USING PLAN ASSETS
OF
ANY SUCH PLAN OR ARRANGEMENT TO EFFECT THE TRANSFER, OR (B) IF THIS CERTIFICATE
HAS BEEN THE SUBJECT OF AN ERISA-QUALIFYING UNDERWRITING, A REPRESENTATION
THAT
THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE WITH FUNDS
CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN SECTION V(e)
OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT THE PURCHASE
AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE
95-60, OR (C) AN OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE
AGREEMENT REFERRED TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY
HEREIN, ANY PURPORTED TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN SUBJECT TO ERISA OR TO SECTION 4975 OF THE CODE WITHOUT
THE DELIVERY TO THE CERTIFICATE REGISTRAR OF AN OPINION OF COUNSEL SATISFACTORY
TO THE CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
D-1
|
Certificate
No.:
|
1
|
|
Cut-Off
Date:
|
November
1, 2006
|
|
First
Distribution Date:
|
December
19, 2006
|
|
Initial
Certificate Principal
|
|
|
Balance
of this Certificate:
|
$100
|
|
Original
Class
|
Principal
Balance of this
|
|
Class:
|
$100
|
|
Percentage
Interest:
|
100%
|
|
Class:
|
P
|
D-2
HarborView
Mortgage Loan Trust 2006-13
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Class
P
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate is distributable monthly as set forth herein and
in
the pooling and servicing agreement dated as of November 1, 2006 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxx Fargo Bank, N.A., as master servicer and as securities
administrator (in such capacity, the “Securities Administrator”), Xxxxxxx Fixed
Income Services, Inc., as credit risk manager and Deutsche Bank National Trust
Company, as trustee (in such capacity, the “Trustee”) and custodian.
Accordingly, the Certificate Principal Balance of this Certificate at any time
may be less than the Initial Certificate Principal Balance set forth on the
face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller or
the
Trustee referred to below or any of their respective affiliates.
This
certifies that GREENWICH CAPITAL FINANCIAL PRODUCTS, INC is the registered
owner
of the Percentage Interest evidenced by this Certificate (obtained by dividing
the Denomination of this Certificate by the Original Class Principal Balance)
in
certain monthly distributions with respect to a Trust Fund consisting primarily
of the Mortgage Loans deposited by the Depositor. The Trust Fund was created
pursuant to the Agreement. To the extent not defined herein, capitalized terms
used herein have the meanings assigned to them in the Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Agreement, to which Agreement the Holder of this Certificate
by virtue of the acceptance hereof assents and by which such Holder is
bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually authenticated by an authorized signatory of
the
Securities Administrator and the Certificate Registrar.
No
transfer of this Certificate shall be made unless the Certificate Registrar
shall have received either (i) a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Certificate Registrar and in substantially the form attached to the Agreement,
to the effect that such transferee is not an employee benefit or other plan
or
arrangement subject to Section 406 of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code
of 1986, as amended (the “Code”), nor a person acting on behalf or investing
plan assets of any such plan or arrangement, which representation letter shall
not be an expense of the Certificate Registrar, or (ii) if the purchaser is
an
insurance company, a representation that the purchaser is an insurance company
which is purchasing such Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60,
or (iii) an Opinion of Counsel in accordance with the provisions of the
Agreement. Notwithstanding anything else to the contrary herein, any purported
transfer of this Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the opinion of counsel satisfactory to the
Certificate Registrar as described above shall be void and of no
effect.
D-3
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Certificate Registrar
of
(a) a transfer affidavit of the proposed transferee and (b) a transfer
certificate of the transferor, each of such documents to be in the form
described in the Agreement, (iii) each person holding or acquiring any Ownership
Interest in this Certificate must agree to require a transfer affidavit and
to
deliver a transfer certificate to the Certificate Registrar as required pursuant
to the Agreement, (iv) each person holding or acquiring an Ownership
Interest in this Certificate must agree not to transfer an Ownership Interest
in
this Certificate if it has actual knowledge that the proposed transferee is
not
a Permitted Transferee and (v) any attempted or purported transfer of any
Ownership Interest in this Certificate in violation of such restrictions will
be
absolutely null and void and will vest no rights in the purported transferee.
The Certificate Registrar will provide the Internal Revenue Service and any
pertinent persons with the information needed to compute the tax imposed under
the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest on a Class P Certificate in violation of the restrictions
mentioned above.
D-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
December ___, 2006
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
________________________________
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
_____________________________________
Authorized
Signatory of
XXXXX
FARGO BANK, N.A.,
as
Certificate Xxxxxxxxx
X-0
EXHIBIT
E
[RESERVED]
E-1
EXHIBIT
F
REQUEST
FOR RELEASE
|
|
|
|
Date
|
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as Trustee
under
a certain Pooling and Servicing Agreement dated as of November 1, 2006, among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities Administrator, Xxxxxxx Fixed Income Services, Inc., as Credit Risk
Manager, and Deutsche Bank National Trust Company, as Trustee and Custodian
(the
“Pooling and Servicing Agreement”), the undersigned [Master Servicer] [Servicer]
hereby requests a release of the Mortgage File held by you as Trustee with
respect to the following described Mortgage Loan for the reason indicated
below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The [Master Servicer] [Servicer] hereby certifies that
all
amounts received in connection with the loan have been or will be credited
to a
Servicing Account or the Distribution Account (whichever is applicable) pursuant
to the Pooling and Servicing Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The [Master Servicer] [Servicer] hereby certifies that a
Qualified Substitute Mortgage Loan has been assigned and delivered to you along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
4. Mortgage
Loan repurchased. (The [Master Servicer] [Servicer] hereby certifies that the
Purchase Price has been credited to a Servicing Account or the Distribution
Account (whichever is applicable) pursuant to the Pooling and Servicing
Agreement.)
5. Other.
(Describe)
F-1
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling and Servicing
Agreement and will be returned to you within ten (10) days of our receipt of
the
Mortgage File, except if the Mortgage Loan has been paid in full, or repurchased
or substituted for a Qualified Substitute Mortgage Loan (in which case the
Mortgage File will be retained by us without obligation to return to
you).
Capitalized
terms used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
_____________________________________
[Name
of
[Master Servicer] [Servicer]]
By:
__________________________________
Name:
Title:
Servicing Officer
F-2
EXHIBIT
G-1
FORM
OF RECEIPT OF MORTGAGE NOTE
RECEIPT
OF MORTGAGE NOTE
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series
2006-13
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement dated as of
November 1, 2006, among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, Xxxxxxx Fixed Income Services
Inc., as Credit Risk Manager, and Deutsche Bank National Trust Company, as
Trustee and Custodian, we hereby acknowledge the receipt of the original
Mortgage Note with respect to each Mortgage Loan listed on Exhibit 1, with
any
exceptions thereto listed on Exhibit 2.
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
By:
______________________
Name:
Title:
Dated:
G-1-1
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
G-1-2
EXHIBIT
2
EXCEPTION
REPORT
G-1-3
EXHIBIT
G-2
FORM
OF INTERIM CERTIFICATION OF TRUSTEE
INTERIM
CERTIFICATION OF TRUSTEE
[Date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: |
Pooling
and Servicing Agreement dated as of November 1, 2006, among Greenwich
Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and
Securities Administrator, Xxxxxxx Fixed Income Services, Inc., as
Credit
Risk Manager, and Deutsche Bank National Trust Company, as Trustee
and
Custodian,
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series
2006-13
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
schedule) it has received:
|
(i)
|
all
documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its
possession;
|
| (ii) |
such
documents have been reviewed by the Trustee and have not been mutilated,
damaged or torn and relate to such Mortgage Loan;
and
|
| (iii) |
based
on the Trustee’s examination and only as to the foregoing, the information
set forth in the Mortgage Loan Schedule that corresponds to items
(i),
(ii), (xx), (xxi) and (xxiv) of the Mortgage Loan Schedule accurately
reflects information set forth in the Mortgage
File.
|
G-2-1
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
By:
_______________________________
Name:
Title:
G-2-2
EXHIBIT
G-3
FORM
OF FINAL CERTIFICATION OF TRUSTEE
FINAL
CERTIFICATION OF TRUSTEE
[Date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
| Re: |
Pooling
and Servicing Agreement dated as of November 1, 2006, among Greenwich
Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer
and
Securities Administrator, Xxxxxxx Fixed Income Services, Inc., as
Credit
Risk Manager, and Deutsche Bank National Trust Company, as Trustee
and
Custodian,
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series
2006-13
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
Document Exception Report) it has received all documents required to be
delivered to the Trustee pursuant to Section 2.01 of the Pooling and Servicing
Agreement.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (i), (ii), (xx), (xxi) and (xxiv) of
the
definition of the “Mortgage Loan Schedule” in Section 1.01 of the Pooling and
Servicing Agreement accurately reflects information set forth in the Mortgage
File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
G-3-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee
By:
_________________________________
Name:
Title:
G-3-2
EXHIBIT
H
FORM
OF LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
______________________ who first being duly sworn deposes and says: Deponent
is
______________________ of Greenwich Capital Financial Products, Inc. (the
“Seller”) and who has personal knowledge of the facts set out in this
affidavit.
On
___________________, _________________________ did execute and deliver a
promissory note in the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is currently lost
and
unavailable after diligent search has been made. The Seller’s records show that
an amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and such Seller is still owner and holder in due course of
said
lost note.
The
Seller executes this Affidavit for the purpose of inducing Deutsche Bank
National Trust Company, as trustee on behalf of HarborView Mortgage Loan Trust
2006-13, Mortgage Loan Pass-Through Certificates, Series 2006-13, to accept
the
transfer of the above described loan from the Seller.
The
Seller agrees to indemnify Deutsche Bank National Trust Company and Greenwich
Capital Acceptance, Inc. and hold them harmless for any losses incurred by
such
parties resulting from the fact that the above described Note has been lost
or
misplaced.
By:
__________________________________
__________________________________
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
On
this
____ day of ___________ 20__, before me, a Notary Public, in and for said County
and State, appeared ________________________, who acknowledged the extension
of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness
my hand and Notarial Seal this ____ day of _______ 20__.
_______________________________
_______________________________
My
commission expires _______________.
H-1
EXHIBIT
I-1
FORM
OF ERISA REPRESENTATION FOR RESIDUAL CERTIFICATE
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
| Re: |
HarborView
Mortgage Loan Trust 2006-13 Mortgage Loan Pass-Through
Certificates,
Series 2006-13, Class R
Certificate
|
Ladies
and Gentlemen:
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which she makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if the Certificate has been the subject of a best efforts or
firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 2002-41, and is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the purchase and
holding of such Certificates are covered under Section I and III of PTCE 95-60;
or (z) shall deliver to the Certificate Registrar an opinion of counsel (a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee will not result
in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Trustee, the Certificate Registrar, the
Servicer or the Depositor to any obligation in addition to those undertaken
by
such entities in the Pooling and Servicing Agreement, which opinion of counsel
shall not be an expense of the Trustee, the Certificate Registrar the Depositor
or the Trust Fund.
I-1-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of November 1, 2006 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx Fixed Income Services, Inc., as Credit Risk Manager, and Deutsche Bank
National Trust Company, as Trustee and Custodian, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and the Certificate
Registrar have received a certificate from such transferee in the form
hereof.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:
______________________________
Name:
Title:
I-1-2
EXHIBIT
I-2
FORM
OF ERISA REPRESENTATION
FOR
ERISA RESTRICTED TRUST CERTIFICATES
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
| Re: |
HarborView
Mortgage Loan Trust 2006-13, Mortgage Loan Pass-Through
Certificates,
Series 2006-13, ERISA Restricted Trust
Certificates
|
Ladies
and Gentlemen:
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which she makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if the Certificate has been the subject of a best efforts or
firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 2002-41, and is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the purchase and
holding of such Certificates are covered under Section I and III of PTCE 95-60;
or (z) shall deliver to the Certificate Registrar an opinion of counsel (a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee will not result
in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Trustee, the Certificate Registrar, the
Servicer or the Depositor to any obligation in addition to those undertaken
by
such entities in the Pooling and Servicing Agreement, which opinion of counsel
shall not be an expense of the Trustee, the Certificate Registrar the Depositor
or the Trust Fund.
I-2-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of November 1, 2006 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx Fixed Income Services, Inc., as Credit Risk Manager, and Deutsche Bank
National Trust Company, as Trustee and Custodian, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and the Certificate
Registrar have received a certificate from such transferee in the form
hereof.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:
______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF INVESTMENT LETTER [NON-RULE 144A]
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2006-13, Mortgage Loan
Pass-Through
Certificates, Series 2006-13, Class
[B-4][B-5][B-6]
|
Ladies
and Gentlemen:
In
connection with our acquisition the Class [B-4][B-5][B-6] Certificates (the
“Certificates”) of the above-captioned series, we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of
1933,
as amended (the “Act”), or any state securities laws and are being transferred
to us in a transaction that is exempt from the registration requirements of
the
Act and any such laws, (b) we are an “accredited investor,” as defined in
Regulation D under the Act, and have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks
of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase
of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with
a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any person,
or otherwise approached or negotiated with any person with respect thereto,
or
taken any other action which would result in a violation of Section 5 of the
Act, and (f) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide
an
opinion of counsel satisfactory to the addressees of this Certificate that
such
sale, transfer or other disposition may be made pursuant to an exemption from
the Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in that Pooling and Servicing Agreement,
dated
as of November 1, 2006, among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, Xxxxxxx Fixed Income Services,
Inc., as Credit Risk Manager and Deutsche Bank National Trust Company, as
Trustee and Custodian.
J-1-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
Very
truly yours,
[NAME
OF
TRANSFEREE]
By:
______________________________
Authorized
Officer
X-0-0
XXXXXXX
X-0
FORM
OF RULE 144A INVESTMENT LETTER
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2006-13, Mortgage Loan
Pass-Through
Certificates, Series 2006-13, Class
[B-4][B-5][B-6]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the Class [B-4][B-5][B-6] Certificates (the
“Certificates”) of the above-captioned series, we certify that (a) we understand
that the Certificates are not being registered under the Securities Act of
1933,
as amended (the “Act”), or any state securities laws and are being transferred
to us in a transaction that is exempt from the registration requirements of
the
Act and any such laws, (b) we have had the opportunity to ask questions of
and
receive answers from the Depositor concerning the purchase of the Certificates
and all matters relating thereto or any additional information deemed necessary
to our decision to purchase the Certificates, (c) we have not, nor has anyone
acting on our behalf offered, transferred, pledged, sold or otherwise disposed
of the Certificates, any interest in the Certificates or any other similar
security to, or solicited any offer to buy or accept a transfer, pledge or
other
disposition of the Certificates, any interest in the Certificates or any other
similar security from, or otherwise approached or negotiated with respect to
the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act
or
that would render the disposition of the Certificates a violation of Section
5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, and (d) we are a “qualified institutional buyer” as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex
1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to
be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities
Act.
J-2-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement, dated as of November 1, 2006,
among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities Administrator, Xxxxxxx Fixed Income Services, Inc., as Credit Risk
Manager and Deutsche Bank National Trust Company, as Trustee and
Custodian.
Very
truly yours,
[NAME
OF
TRANSFEREE]
By:______________________________
Authorized
Officer
J-2-2
ANNEX
1 TO EXHIBIT J-2
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
i. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
ii. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
__________________
| 1 |
Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must
own
and/or invest on a discretionary basis at least $10,000,000 in
securities.
|
J-2-3
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
___ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
v. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
vi. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
J-2-4
_______________________________
Print
Name of Buyer
By: ____________________________
Name:
Title:
Date:
___________________________
X-0-0
XXXXX
0 XX XXXXXXX X-0
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
J-2-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
_______________________________
Print
Name of Buyer or Adviser
By:____________________________
Name:
Title:
IF
AN
ADVISER:
Print
Name of Buyer
Date:
J-2-7
EXHIBIT
K
FORM
OF TRANSFEROR CERTIFICATE
[Date]
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2006-13 Mortgage Loan
Pass-Through
Certificates, Series 2006-13, Class
R
|
Ladies
and Gentlemen:
In
connection with our proposed transfer of an Ownership Interest in the Class
R
Certificate, we hereby certify that (a) we have no knowledge that the proposed
Transferee is not a Permitted Transferee acquiring an Ownership Interest in
such
Class R Certificate for its own account and not in a capacity as trustee,
nominee, or agent for another Person, and (b) we have not undertaken the
proposed transfer in whole or in part to impede the assessment or collection
of
tax.
Very
truly yours,
[_____________________]
By:
______________________________
K-1
EXHIBIT
L
TRANSFER
AFFIDAVIT FOR RESIDUAL CERTIFICATE
PURSUANT
TO SECTION 6.02(e)
HARBORVIEW
MORTGAGE LOAN TRUST 2006-13
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-13,
CLASS
R
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
|
1.
|
The
undersigned is an officer of ______________________, the proposed
Transferee of a 100% Ownership Interest in the Class R Certificate
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement,
(the “Agreement”) dated as of November 1, 2006, relating to the
above-referenced Certificates, among Greenwich Capital Acceptance,
Inc.,
as Depositor, Greenwich Capital Financial Products, Inc., as Seller,
Xxxxx
Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx
Fixed Income Services, Inc., as Credit Risk Manager and Deutsche
Bank
National Trust Company, as Trustee and Custodian. Capitalized terms
used,
but not defined herein, shall have the meanings ascribed to such
terms in
the Agreement. The Transferee has authorized the undersigned to make
this
affidavit on behalf of the
Transferee.
|
|
2.
|
The
Transferee is, as of the date hereof, and will be, as of the date
of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest for its own account and not in a capacity as trustee,
nominee or agent for another party.
|
|
3.
|
The
Transferee has been advised of, and understands that (i) a tax will
be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or,
if such
Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the
agent;
and (iii) the Person otherwise liable for the tax shall be relieved
of
liability for the tax if the subsequent Transferee furnished to such
Person an affidavit that such subsequent Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have
actual
knowledge that the affidavit is false. The Transferee has provided
financial statements or other financial information requested by
the
Transferor in connection with the transfer of the Certificate to
permit
the Transferor to assess the financial capability of the Transferee
to pay
such taxes.
|
|
4.
|
The
Transferee has been advised of, and understands that a tax may be
imposed
on a “pass-through entity” holding the Certificate if, at any time during
the taxable year of the pass-through entity, a Disqualified Organization
is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
respect
to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization
and
the pass-through entity does not have actual knowledge that such
affidavit
is false. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common trust
fund, a
partnership, trust or estate, and certain cooperatives and, except
as may
be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another
Person.)
|
L-1
|
5.
|
The
Transferee has reviewed the provisions of Section 6.02(e) of the
Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding
voiding
the Transfer and mandatory sales. The Transferee expressly agrees
to be
bound by and to abide by the provisions of Section 6.02(e) of the
Agreement and the restrictions noted on the face of the Certificate.
The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the
Transferee contemplated hereby null and
void.
|
|
6.
|
The
Transferee agrees to require a Transfer Affidavit from any Person
to whom
the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and the Transferee will not Transfer its Ownership Interest
or cause any Ownership Interest to be Transferred to any Person that
the
Transferee knows is not a Permitted Transferee. In connection with
any
such Transfer by the Transferee, the Transferee agrees to deliver
to the
Trustee a certificate substantially in the form set forth as Exhibit
K to
the Agreement (a “Transferor
Certificate”).
|
|
7.
|
The
Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to
the
Certificate.
|
| 8. |
The
Transferee’s taxpayer identification number is .
|
|
9.
|
The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of the REMIC provisions and that the
transferor of a noneconomic residual interest will remain liable
for any
taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment
or
collection of tax.
|
L-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
[NAME
OF
TRANSFEREE]
By: _______________
Name:
Title:
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act and
deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
_______________
NOTARY
PUBLIC
My
Commission expires the
day
of
,
20 .
L-3
EXHIBIT
M
LIST
OF SERVICERS AND SERVICING AGREEMENTS
1. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of September
1,
2004, as amended by that certain Amendment Number One, dated as of October
28,
2004 and that certain Amendment Number Two, dated as of September 23, 2005,
between the Seller and Xxxxxx Savings and Loan Association, F.A. (“Xxxxxx”), as
reconstituted pursuant to a Reconstitution Agreement, dated as of November
1,
2006, among the Purchaser, the Seller and Xxxxxx, and acknowledged by the Master
Servicer, the Securities Administrator and the Trustee.
2. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of December
31,
2005, between the Seller and Xxxxxx, as amended by Amendment Number One, dated
as of September 8, 2006, as reconstituted pursuant to a Reconstitution
Agreement, dated as of November 1, 2006, among the Purchaser, the Seller and
Xxxxxx, and acknowledged by the Master Servicer, the Securities Administrator
and the Trustee.
3. Master
Mortgage Loan Purchase and Servicing Agreement, dated as of July 1, 2003, as
amended and restated to and including February 1, 2006, between the Seller
and
First Republic Bank (“First Republic”), as reconstituted pursuant to a
Reconstituted Servicing Agreement, dated as of November 1, 2006, among the
Purchaser, the Seller and First Republic, and acknowledged by the Master
Servicer, the Securities Administrator and the Trustee.
4. Mortgage
Loan Purchase Agreement, dated as of November 1, 2006, between the Seller and
GMAC Mortgage, LLC (“GMAC”), as reconstituted pursuant to a Reconstituted
Servicing Agreement, dated as of November 1, 2006, among the Purchaser, the
Seller and GMAC, and acknowledged by the Master Servicer and the
Trustee.
M-1
EXHIBIT
N-1
FORM
OF TRANSFER CERTIFICATE (RESTRICTED GLOBAL SECURITY TO REGULATION S
SECURITY)
FORM
OF TRANSFER CERTIFICATE
FOR
TRANSFER FROM RESTRICTED GLOBAL SECURITY
TO
REGULATION S GLOBAL SECURITY
(Transfers
pursuant to §§ 6.02 (f) (ii)
of the Pooling and Servicing
Agreement)
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2006-13
Mortgage
Loan Pass-Through Certificates, Series
2006-13
|
Reference
is hereby made to the Pooling and Servicing Agreement dated as of November
1,
2006 (the “Pooling and Servicing Agreement”) relating to the above referenced
certificates, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as master
servicer and securities administrator, and Deutsche Bank National Trust Company,
as trustee and custodian. Capitalized terms used but not defined herein shall
have the meanings given them in the Pooling and Servicing
Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Restricted Global Security with
the Depository in the name of [name of transferor]
___________________________________ (the “Transferor”) to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a Regulation
S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling and Servicing Agreement and the private placement
memorandum dated December 11, 2006, relating to the Securities and in accordance
with Rule 904 of Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
N-1-1
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended (the
“Securities Act”); and
e.
the
transferee is not a U.S. Person.
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceedings or official inquiry with respect to
the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
[Name
of Transferor]
By: _______________
Name:
Title:
Date:
,
N-1-2
EXHIBIT
N-2
FORM
OF TRANSFER CERTIFICATE (REGULATION S GLOBAL SECURITY TO RESTRICTED GLOBAL
SECURITY)
(Transfers
pursuant to §§ 6.02 (f) (iii)
of
the Pooling and Servicing
Agreement)
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2006-13
Mortgage
Loan Pass-Through Certificates, Series
2006-13
|
Reference
is hereby made to the Pooling and Servicing Agreement dated as of November
1,
2006 (the “Pooling and Servicing Agreement”) relating to the above referenced
certificates, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich
Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as master
servicer and securities administrator, and Deutsche Bank National Trust Company,
as trustee and custodian. Capitalized terms used but not defined herein shall
have the meanings given them in the Pooling and Servicing
Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Regulations S Global Security
in
the name of [name of transferor] ___________________________________ (the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Pooling and Servicing
Agreement and the private placement memorandum dated December 11, 2006, relating
to the Securities and (ii) Rule 144A under the United States Securities Act
of
1933, as amended, to a transferee that the Transferor reasonably believes is
purchasing the Securities for its own account or an account with respect to
which the transferee exercises sole investment discretion, the transferee or
any
such account is a qualified institutional buyer within the meaning of Rule
144A,
in a transaction meeting the requirements of Rule 144A and in accordance with
any applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of Transferor]
By: _______________
Name:
Title:
Date:
,
N-2-1
EXHIBIT
O
TRANSACTION
PARTIES
|
Credit
Risk Manager
|
Xxxxxxx
Fixed Income Services Inc.
|
|
Custodian
|
Deutsche
Bank National Trust Company
|
|
Master
Servicer
|
Xxxxx
Fargo Bank, N.A.
|
|
Originators
|
Xxxxxx
Savings and Loan Association, F.A., First Republic Bank and GMAC
Mortgage
LLC
|
|
Securities
Administrator
|
Xxxxx
Fargo Bank, N.A.
|
|
Seller
|
Greenwich
Capital Financial Products, Inc.
|
|
Servicers
|
Xxxxxx
Savings and Loan Association, F.A., First Republic Bank and GMAC
Mortgage
LLC
|
|
Subservicer
|
N/A
|
|
Trustee
|
Deutsche
Bank National Trust Company
|
|
Yield
Maintenance Provider
|
Bear
Xxxxxxx Financial Products
Inc.
|
O-1
EXHIBIT
P
LIST
OF PURCHASE AGREEMENTS
1. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of September
1,
2004, as amended by that certain Amendment Number One, dated as of October
28,
2004 and that certain Amendment Number Two, dated as of September 23, 2005,
between the Seller and Xxxxxx Savings and Loan Association, F.A.
(“Xxxxxx”).
2. Master
Mortgage Loan Purchase and Interim Servicing Agreement, dated as of December
31,
2005, between the Seller and Xxxxxx, as amended by Amendment Number One, dated
as of September 8, 2006.
3. Master
Mortgage Loan Purchase and Servicing Agreement, dated as of July 1, 2003, as
amended and restated to and including February 1, 2006, between the Seller
and
First Republic Bank.
4. Mortgage
Loan Purchase Agreement, dated as of November 1, 2006, between the Seller and
GMAC Mortgage, LLC.
P-1
EXHIBIT
Q
SERVICING
CRITERIA
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx
Fargo”), in its capacities as Master Servicer and Securities Administrator,
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria:”
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
|
|
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.
|
|
|
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
|
Q-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
|
|
Reference
|
Criteria
|
|
|
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
|
|
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.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
Q-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Xxxxx
Fargo
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
|
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.
|
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
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.
|
X
|
Q-3
The
assessment of compliance to be delivered by Deutsche Bank National Trust Company
(“Deutsche Bank”), in its capacity as Custodian, shall address, at a minimum,
the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Deutsche
Bank
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
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.
|
|
Q-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Deutsche
Bank
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
Q-5
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
Deutsche
Bank
|
|
|
Reference
|
Criteria
|
|
|
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).
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
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.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
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.
|
|
Q-6
EXHIBIT
R
ADDITIONAL
FORM 10-D DISCLOSURE
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or issuing
entity, that are backed by the same asset pool or are otherwise issued
by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing information
can be omitted if securities were not registered.
|
Depositor
|
R-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
R-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
Item
9: Exhibits
|
|
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
R-3
EXHIBIT
S
ADDITIONAL
FORM 10-K DISCLOSURE
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
|
|
Significant
Obligor Financial Information*
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
|
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
|
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
|
Reg
AB Item 1115(b): Derivative Counterparty Financial
Information
|
|
|
▪
Determining current maximum probable exposure
|
Depositor
|
|
▪
Determining current significance percentage
|
Depositor
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Items.
|
|
S-1
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
Reg
AB Item 1117: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders, including
any
proceeding sknown to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Custodian
|
Custodian
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
|
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand, and
(b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
S-2
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
Whether
there are any specific relationships involving the transaction or
the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing Entity
on
the one hand, and (b) any of the following parties (or their affiliates)
on the other hand, that exist currently or within the past two years
and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
S-3
EXHIBIT
T
ADDITIONAL
FORM 8-K DISCLOSURE
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive agreement
that is material to the securitization, even if depositor is not
a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
All
parties
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement that
is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
▪
Depositor
|
Depositor
|
|
▪
Master Servicer
|
Master
Servicer
|
|
▪
Affiliated Servicer
|
Servicer
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the time
of the
report
|
Servicer
|
|
▪
Other material servicers
|
Servicer
|
|
▪
Trustee
|
Trustee
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
T-1
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining the
rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change of
Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing 10%
or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as derivatives.
|
Depositor/Securities
Administrator/Trustee
|
T-2
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the time
of
issuance of the securities from the description in the final prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
T-3
EXHIBIT
U
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn:
Corporate Trust Services - HARBORVIEW MORTGAGE LOAN TRUST 2006-13-SEC REPORT
PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 3.19(a)(ii) of the Pooling and Servicing Agreement
dated
as of November 1, 2006, among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A.,
as Master Servicer and Securities Administrator, Xxxxxxx Fixed Income Services,
Inc., as Credit Risk Manager and Deutsche Bank National Trust Company, as
Trustee and Custodian, the undersigned, as [ ], hereby notifies you that certain
events have come to our attention that [will][may] need to be disclosed on
Form
[ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
By:
___________________________
Name:
Title:
U-1
EXHIBIT
V-1
FORM
OF WATCHLIST REPORT
V-1-1
EXHIBIT
V-2
FORM
OF LOSS SEVERITY REPORT
V-2-1
EXHIBIT
V-3
FORM
OF LOSS PREPAYMENT PREMIUMS REPORT
V-3-1
EXHIBIT
V-4
FORM
OF LOSS ANALYTICS REPORT
V-4-1
EXHIBIT
W
FORM
OF CERTIFICATION TO BE PROVIDED BY THE CREDIT RISK MANAGER
W-1
EXHIBIT
X
FORM
OF YIELD MAINTENANCE AGREEMENT
X-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
SCHEDULE
II
FINAL
MATURITY RESERVE SCHEDULE
