GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller CLAYTON FIXED INCOME SERVICES INC., Credit Risk Manager and WELLS FARGO BANK, N.A., Trustee POOLING AND SERVICING AGREEMENT Dated as of April 1, 2007...
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
XXXXXXX
FIXED INCOME SERVICES INC.,
Credit
Risk Manager
and
XXXXX
FARGO BANK, N.A.,
Trustee
Dated
as
of April 1, 2007
_________________________________
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
Table
of Contents
Page
|
Article
I DEFINITIONS; DECLARATION OF TRUST
|
6
|
|
|
SECTION
1.01.
|
Defined
Terms.
|
6
|
|
SECTION
1.02.
|
Accounting.
|
57
|
|
Article
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
57
|
|
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
57
|
|
SECTION
2.02.
|
Acceptance
by Trustee.
|
65
|
|
SECTION
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
|
67
|
|
SECTION
2.04.
|
Representations
and Warranties of the Seller with Respect to the Mortgage
Loans.
|
71
|
|
SECTION
2.05.
|
Back-up
of Originator Representations and Warranties.
|
72
|
|
SECTION
2.06.
|
Representations
and Warranties of the Depositor.
|
72
|
|
SECTION
2.07.
|
Issuance
of Certificates.
|
74
|
|
SECTION
2.08.
|
Representations
and Warranties of the Seller.
|
74
|
|
SECTION
2.09.
|
Covenants
of the Seller.
|
76
|
|
Article
III ADMINISTRATION OF THE MORTGAGE LOANS
|
76
|
|
|
SECTION
3.01.
|
Servicing
of the Mortgage Loans.
|
76
|
|
SECTION
3.02.
|
REMIC-Related
Covenants.
|
76
|
|
SECTION
3.03.
|
Release
of Mortgage Files.
|
77
|
|
SECTION
3.04.
|
Assessments
of Compliance and Attestation Reports.
|
78
|
|
SECTION
3.05.
|
Enforcement
of Regulation AB Deliverables.
|
80
|
|
SECTION
3.06.
|
Xxxxxxxx-Xxxxx
Certification.
|
80
|
|
SECTION
3.07.
|
Reports
Filed with Securities and Exchange Commission.
|
80
|
|
SECTION
3.08.
|
Additional
Information.
|
86
|
|
SECTION
3.09.
|
Intention
of the Parties and Interpretation.
|
86
|
|
SECTION
3.10.
|
Indemnification
by the Trustee.
|
87
|
|
SECTION
3.11.
|
[Reserved].
|
88
|
|
SECTION
3.12.
|
Reporting
Requirements of the Commission.
|
88
|
|
SECTION
3.13.
|
Duties
of the Credit Risk Manager.
|
88
|
|
SECTION
3.14.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
88
|
|
SECTION
3.15.
|
Removal
of Credit Risk Manager.
|
88
|
|
Article
IV ACCOUNTS
|
89
|
|
|
SECTION
4.01.
|
Servicing
Accounts.
|
89
|
|
SECTION
4.02.
|
Distribution
Account.
|
90
|
|
SECTION
4.03.
|
Permitted
Withdrawals and Transfers from the Distribution Account.
|
91
|
|
SECTION
4.04.
|
[Reserved].
|
93
|
|
SECTION
4.05.
|
[Reserved].
|
93
|
|
SECTION
4.06.
|
Prefunding
Account.
|
93
|
|
SECTION
4.07.
|
Capitalized
Interest Account.
|
94
|
|
Article
V FLOW OF FUNDS
|
95
|
|
|
SECTION
5.01.
|
Distributions.
|
95
|
|
SECTION
5.02.
|
Allocation
of Net Deferred Interest.
|
104
|
|
SECTION
5.03.
|
Allocation
of Realized Losses.
|
105
|
|
SECTION
5.04.
|
Statements.
|
106
|
|
SECTION
5.05.
|
Remittance
Reports; Advances.
|
109
|
|
SECTION
5.06.
|
Compensating
Interest Payments.
|
110
|
|
SECTION
5.07.
|
Basis
Risk Reserve Fund.
|
110
|
|
SECTION
5.08.
|
Recoveries.
|
111
|
|
SECTION
5.09.
|
The
Final Maturity Reserve Trust.
|
111
|
|
SECTION
5.10.
|
Yield
Maintenance Agreement; Yield Maintenance Trust; Yield Maintenance
Trust
Account.
|
112
|
|
SECTION
5.11.
|
Yield
Maintenance Account; Collateral Account.
|
113
|
|
Article
VI
|
116
|
|
|
THE
CERTIFICATES
|
116
|
|
|
SECTION
6.01.
|
The
Certificates.
|
116
|
|
SECTION
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
117
|
|
SECTION
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
125
|
|
SECTION
6.04.
|
Persons
Deemed Owners.
|
125
|
|
SECTION
6.05.
|
Appointment
of Paying Agent.
|
125
|
|
Article
VII DEFAULT
|
126
|
|
|
SECTION
7.01.
|
Event
of Default.
|
126
|
|
SECTION
7.02.
|
Trustee
to Act.
|
126
|
|
SECTION
7.03.
|
Waiver
of Event of Default.
|
127
|
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
128
|
|
Article
VIII THE TRUSTEE
|
128
|
|
|
SECTION
8.01.
|
Duties
of the Trustee.
|
128
|
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
130
|
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage Loans.
|
131
|
|
SECTION
8.04.
|
Trustee
and Custodian May Own Certificates.
|
132
|
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
132
|
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
133
|
|
SECTION
8.07.
|
Resignation
or Removal of Trustee.
|
133
|
|
SECTION
8.08.
|
Successor
Trustee.
|
134
|
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
135
|
|
SECTION
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
135
|
|
SECTION
8.11.
|
Limitation
of Liability.
|
136
|
|
SECTION
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
136
|
ii
|
SECTION
8.13.
|
Suits
for Enforcement.
|
137
|
|
SECTION
8.14.
|
Waiver
of Bond Requirement.
|
137
|
|
SECTION
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
137
|
|
SECTION
8.16.
|
Appointment
of Custodians.
|
137
|
|
SECTION
8.17.
|
Indemnification.
|
138
|
|
SECTION
8.18.
|
Limitation
of Liability of Trustee and Yield Maintenance Administrator;
Indemnification.
|
138
|
|
SECTION
8.19.
|
Yield
Maintenance Administrator’s Fees and Expenses.
|
139
|
|
SECTION
8.20.
|
Resignation
or Removal of the Yield Maintenance Administrator.
|
139
|
|
SECTION
8.21.
|
Closing
Opinion of Counsel.
|
140
|
|
Article
IX REMIC ADMINISTRATION
|
140
|
|
|
SECTION
9.01.
|
REMIC
Administration.
|
140
|
|
SECTION
9.02.
|
Prohibited
Transactions and Activities.
|
143
|
|
Article
X TERMINATION143
|
||
|
SECTION
10.01.
|
Termination.
|
143
|
|
SECTION
10.02.
|
Additional
Termination Requirements.
|
146
|
|
SECTION
10.03.
|
NIMS
Insurer Optional Purchase Right of Distressed Mortgage
Loans.
|
146
|
|
Article
XI DISPOSITION OF TRUST FUND ASSETS
|
146
|
|
|
SECTION
11.01.
|
Disposition
of Trust Fund Assets.
|
146
|
|
Article
XII MISCELLANEOUS PROVISIONS
|
147
|
|
|
SECTION
12.01.
|
Amendment.
|
147
|
|
SECTION
12.02.
|
Recordation
of Agreement; Counterparts.
|
148
|
|
SECTION
12.03.
|
Limitation
on Rights of Certificateholders.
|
148
|
|
SECTION
12.04.
|
Governing
Law; Jurisdiction.
|
149
|
|
SECTION
12.05.
|
Notices.
|
149
|
|
SECTION
12.06.
|
Severability
of Provisions.
|
150
|
|
SECTION
12.07.
|
Article
and Section References.
|
150
|
|
SECTION
12.08.
|
Notice
to the Rating Agencies.
|
150
|
|
SECTION
12.09.
|
Further
Assurances.
|
152
|
|
SECTION
12.10.
|
Benefits
of Agreement.
|
152
|
|
SECTION
12.11.
|
Acts
of Certificateholders.
|
152
|
|
SECTION
12.12.
|
Successors
and Assigns.
|
153
|
|
SECTION
12.13.
|
Provision
of Information.
|
153
|
|
SECTION
12.14.
|
Transfer
of Servicing.
|
153
|
|
SECTION
12.15.
|
Tax
Treatment of the Class ES Certificates.
|
153
|
EXHIBITS
AND SCHEDULES:
|
Exhibit
A
|
Form
of Senior Certificate
|
A
|
|
Exhibit
B
|
Form
of Subordinate Certificate
|
B
|
|
Exhibit
C-1
|
Form
of Class C Certificate
|
C-1
|
iii
|
Exhibit
C-2
|
Form
of Class P Certificate
|
C-2
|
|
Exhibit
C-3
|
Form
of Class R Certificate
|
C-3
|
|
Exhibit
C-4
|
Form
of Class ES Certificate
|
C-4
|
|
Exhibit
D
|
Form
of Reverse Certificate
|
D
|
|
Exhibit
E
|
[Reserved]
|
E
|
|
Exhibit
F
|
Request
for Release
|
F
|
|
Exhibit
G-1
|
Form
of Receipt of Mortgage Note
|
G-1
|
|
Exhibit
G-2
|
Form
of Interim Certification of Trustee
|
G-2
|
|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H
|
|
Exhibit
I-1
|
Form
of ERISA Representation for Residual Certificate
|
I-1
|
|
Exhibit
I-2
|
Form
of ERISA Representation for ERISA-Restricted Trust
Certificates
|
I-2
|
|
Exhibit
J-1
|
Form
of Investment Letter [Non-Rule 144A]
|
J-1
|
|
Exhibit
J-2
|
Form
of Rule 144A Investment Letter
|
J-2
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K
|
|
Exhibit
L
|
Transfer
Affidavit for Residual Certificate Pursuant to Section
6.02(e)
|
L
|
|
Exhibit
M-1
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
M-1
|
|
Exhibit
M-2
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification to be Provided by
Trustee
|
M-2
|
|
Exhibit
N
|
List
of Servicer(s) and Servicing Agreement(s)
|
N
|
|
Exhibit
O
|
Transaction
Parties
|
O
|
|
Exhibit
P
|
Form
of Trustee Certification
|
P
|
|
Exhibit
Q
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
Q
|
|
Exhibit
R
|
Form
10-D, Form 8-K and Form 10-K Reporting Responsibility
|
R
|
|
Exhibit
S
|
[Reserved]
|
S
|
|
Exhibit
T
|
Form
of Subsequent Transfer Agreement
|
T
|
|
Exhibit
U
|
Additional
Disclosure Notification
|
U
|
|
Exhibit
V
|
List
of Originators and Purchase Agreements
|
V
|
|
Exhibit
W
|
Yield
Maintenance Allocation Agreement
|
W
|
|
Exhibit
X
|
Yield
Maintenance Agreement
|
X
|
|
Exhibit
Y
|
List
of Supported Originators
|
Y
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
Schedule
II
|
Final
Maturity Reserve Schedule
|
iv
This
Pooling and Servicing Agreement is dated as of April 1, 2007 (the “Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a New York corporation, as seller
(the “Seller”),
XXXXX
FARGO BANK, N.A., a national banking association, as trustee (the “Trustee”)
and
XXXXXXX FIXED INCOME SERVICES., as credit risk manager (the “Credit
Risk Manager”).
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
2007-3 (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 seventeen classes
of certificates, designated as (i) the Class 1A-1A Certificates, (ii) the Class
2A-1A Certificates, (iii) the Class 2A-1B Certificates, (iv) the Class 2A-1C
Certificates, (v) the Class B-1 Certificates, (vi) the Class B-2 Certificates,
(vii) the Class B-3 Certificates, (viii) the Class B-4 Certificates, (ix) the
Class B-5 Certificates, (x) the Class B-6 Certificates, (xi) the Class B-7
Certificates, (xii) the Class B-8 Certificates, (xiii) the Class B-9
Certificates, (xiv) the Class C Certificates, (xv) the Class P Certificates,
(xvi) the Class ES Certificates and (xvii) the Class R
Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held in
the
Prefunding Account, the Capitalized Interest Account, the Basis Risk Reserve
Fund, the the Yield Maintenance Trust, the Yield Maintenance Trust Account,
the
Yield Maintenance Account, the Yield Maintenance Agreement, the Collateral
Account, the Final Maturity Reserve Trust and the Final Maturity Reserve Account
and the Class ES Distributable Amount (the “Excluded
Trust Property”))
comprises three REMICs in a tiered REMIC structure: the “Lower-Tier
REMIC,”
the
“Middle-Tier
REMIC,”
and
the
“Upper-Tier
REMIC.”
Each
Certificate, other than the Class ES and Class R Certificates, shall represent
ownership of a regular interest in the Upper-Tier REMIC, as described herein.
The LIBOR Certificates also
represent the right to receive (i) payments in respect of the Final Maturity
Reserve Account, as provided in section 5.01(g), and (ii) payments in respect
of
Basis Risk Shortfalls from the Yield Maintenance Account as provided in Section
5.01(h) or the Basis Risk Reserve Fund as provided in section 5.07. The owners
of the Class C Certificates beneficially own the Basis Risk Reserve Fund, the
Final Maturity Reserve Account, the Final Maturity Reserve Trust, the Yield
Maintenance Trust Account, and the Yield Maintenance Account. The Class R
Certificates represent the only class of residual interests in the Upper-Tier
REMIC, as well as the only residual interests in each of the Lower-Tier REMIC
and the Middle-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 will issue five
uncertificated interests, four 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
Middle-Tier REMIC will hold as its assets all of the Lower-Tier Regular
Interests and shall issue 18 uncertificated interests, 17 of which shall be
the
“Middle-
Tier
Regular Interests”
and
one
residual interest (the “MT-R Interest”), which will represent the sole class of
residual interest in the Middle-Tier REMIC.
The
Upper-Tier REMIC will hold as its assets all of the Middle-Tier Regular
Interests and shall issue the Certificates.
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
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance of each Lower-Tier Regular Interest and the LT-R
Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
||
|
LT-Initial
|
(1)
|
$
514,574,359.31
|
||
|
LT-Subsequent
|
(2)
|
$
362,139,724.00
|
||
|
LT-C
|
(3)
|
(3)
|
||
|
LT-I
|
(4)
|
(4)
|
||
|
LT-R
|
(5)
|
(5)
|
|
(1)
|
The
interest rate with respect to the first Distribution Date (and the
related
Accrual Period) for the LT- Initial Lower-Tier Regular Interests
is a per
annum rate equal to the weighted average of the Net Loan Rates of
the
Initial Mortgage Loans as of the first day of the related Due Period.
The
interest rate for any subsequent Distribution Date (and the related
Accrual Period) is the Net WAC.
|
|
(2)
|
The
interest rate with respect to the first Distribution Date (and the
related
Accrual Period) for the LT-Subsequent Lower-Tier Regular Interest
is
0.00%, and for every Distribution Date (and related Accrual Period)
thereafter is the Net WAC.
|
|
(3)
|
The
LT-C Interest is an interest only interest that does not have a principal
balance. For the first Distribution Date only it shall have a notional
balance equal to the aggregate of the Stated Principal Balances,
if any,
of the Subsequent Mortgage Loans as of the first day of the related
Due
Period. For the first Distribution Date only, it shall be entitled
to
interest, if any, accrued on the Subsequent Mortgage Loans for the
related
Due Period at their Net Loan Rates, but only to the extent the interest
so
accrued is included in Available Funds for either Loan Group for
such
first Distribution Date. For each Distribution Date after the first
Distribution Date, the notional balance of the LT-C Interest shall
be zero
and it shall not be entitled to any
distributions.
|
|
(4)
|
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
aggregate of the principal balances of the Mortgage Loans as of the
first
day of the related Due Period. For any Distribution Date before the
Distribution Date in May 2017, it shall bear interest for the related
Due
Period at a fixed rate of 0.00%, and for each Distribution Date commencing
on the Distribution Date in May 2017 and on each Distribution Date
thereafter until the Final Maturity Reserve Termination Date, it
shall
bear interest for the related Due Period at a fixed rate equal to
the
Final Maturity Reserve Rate.
|
2
|
(5)
|
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 for both Loan Groups shall be distributed
among the Lower-Tier Regular Interests and the LT-R Interest in the following
order of priority:
(1)
First, as interest on the Lower-Tier Regular Interests at the interest rates
described above;
(2)
Second, to the LT-Initial Interest, in reduction of its principal balance,
an
amount necessary to cause its principal balance to equal the aggregate of the
Stated Principal Balances of the Initial Mortgage Loans as of the close of
the
related Due Period;
(2)
Third, to the LT-Subsequent Interest, in reduction of its principal balance,
an
amount necessary to reduce its principal balance to zero; and
(3)
Finally, to the LT-R Interest, any remaining amounts.
If
on any
Distribution Date, Realized Losses have been sustained in the related Prepayment
Period, and after taking into account distributions on such Distribution Date,
the aggregate principal balance of the LT-Initial and LT-Subsequent Interests
exceed the Pool Collateral Balance for such Distribution Date, Realized Losses,
to the extent of such excess, shall be allocated between the LT-Initial and
LT-Subsequent Interests in the same manner in which principal distributions
a
made on such Lower-Tier Regular Interests.
On
each
Distribution Date, Net Deferred Interest shall be allocated between the
LT-Initial and LT-Subsequent Interests in the same manner in which principal
distributions are made on such Lower-Tier Regular Interests.
On
each
Distribution Date, Prepayment Penalty Amounts on the Initial Mortgage Loans
shall be paid in respect of the LT-Initial Interest and any Prepayment Penalty
Amounts on the Subsequent Mortgage Loans shall be paid in respect of the
LT-Subsequent Interests.
Middle-Tier
REMIC
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance of each Middle-Tier Regular Interest and the MT-R
Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Corresponding
Class of Certificate
|
|||
|
MT-1A-1A
|
(1)
|
(5)
|
1A-1A
|
|||
|
MT-2A-1A
|
(1)
|
(5)
|
2A-1A
|
|||
|
MT-2A-1B
|
(1)
|
(5)
|
2A-1B
|
|||
|
MT-2A-1C
|
(1)
|
(5)
|
2A-1C
|
|||
|
MT-B-1
|
(1)
|
(5)
|
B-1
|
|||
|
MT-B-2
|
(1)
|
(5)
|
B-2
|
3
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Corresponding
Class of Certificate
|
|||
|
MT-B-3
|
(1)
|
(5)
|
B-3
|
|||
|
MT-B-4
|
(1)
|
(5)
|
B-4
|
|||
|
MT-B-5
|
(1)
|
(5)
|
B-5
|
|||
|
MT-B-6
|
(1)
|
(5)
|
B-6
|
|||
|
MT-B-7
|
(1)
|
(5)
|
B-7
|
|||
|
MT-B-8
|
(1)
|
(5)
|
B-8
|
|||
|
MT-B-9
|
(1)
|
(5)
|
B-9
|
|||
|
MT-P
|
(1)
|
(5)
|
P
|
|||
|
MT-Q
|
(1)
|
(5)
|
N/A
|
|||
|
MT-I
|
(2)
|
(2)
|
N/A
|
|||
|
MT-C
|
(3)
|
(3)
|
N/A
|
|||
|
MT-R
|
(4)
|
(4)
|
N/A
|
____________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Regular Interests is
a per
annum rate equal to the weighted average of the interest rates on
the
LT-Initial and LT-Subsequent Lower-Tier Regular Interests, weighted
based
on their relative principal balances as of the first day of the related
Accrual Period.
|
|
(2)
|
The
MT-I Interest is an interest only interest that does not have a principal
balance. For any Distribution Date, it is entitled to all amounts
distributed in respect of the LT-I Interest on such Distribution
Date.
|
|
(3)
|
The
MT-C Interest is an interest only interest that does not have a principal
balance. For any Distribution Date, it is entitled to all amounts
distributed in respect of the LT-C Interest on such Distribution
Date.
|
|
(4)
|
The
MT-R Interest is the sole Class of residual interest in the Middle-Tier
REMIC. It does not have an interest rate or a principal
balance.
|
|
(5)
|
The
Initial Principal Balance for each of these Middle-Tier REMIC Regular
Interests shall equal one-half of the Original Class Principal Balance
of
its Corresponding Class of
Certificates.
|
On
each
Distribution Date, Available Funds shall be distributed in payment of principal
on the Lower-Tier Regular Interests as follows:
|
a.
|
concurrently
to the XX-0X-0X, XX-0X-0X, XX-0X-0X, XX-0X-0X, XX-X-0, XX-X-0, MT-B-3,
MT-B-4, XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0, and MT-P Interests
until
the principal balance of each such Middle-Tier Regular Interest equals
50%
of the Class Principal Balance of the Corresponding Class of Certificates
immediately after such Distribution
Date;
|
|
b.
|
to
the MT-Q Interest until its principal balance equals the excess,
if any,
of (I) the Pool Collateral Balance immediately after such Distribution
Date over (II) the aggregate of the principal balances of the Middle-Tier
Regular Interests (other than the MT-Q , MT-C, and the MT-I Interests)
after taking into account distributions on such Distribution Date
under
priority (a) above; and
|
4
|
c.
|
finally,
to the Middle-Tier Regular Interests, as distributions of interest
at the
interest rates shown in the table
above.
|
On
each
Distribution Date, after taking into account principal distributions under
priorities (a) and (b) above, Realized Losses attributable to principal and
any
Net Deferred Interest shall each be allocated among the Middle-Tier Regular
Interests in the same manner that principal is distributed among such
Middle-Tier Regular Interests.
On
each
Distribution Date, Prepayment Penalty Amounts shall be distributed to the MT-P
Interest.
Upper-Tier
REMIC
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate and Original Class Principal Balance for each Class of Certificates, each
of which, except for the Class R Certificates, is hereby designated as
representing ownership of a REMIC regular interest in the Upper-Tier REMIC
for
purposes of the REMIC Provisions.
|
Class
|
Original
Class Principal Balance
or
Class
Notional Balance
|
Pass-Through
Rate
|
|
Class
1A-1A
|
$
293,300,000
|
(1)
|
|
Class
2A-1A
|
$
285,874,000
|
(1)
|
|
Class
2A-1B
|
$
119,113,000
|
(1)
|
|
Class
2A-1C
|
$
71,468,000
|
(1)
|
|
Class
B-1
|
$
41,206,000
|
(1)
|
|
Class
B-2
|
$
16,219,000
|
(1)
|
|
Class
B-3
|
$
11,835,000
|
(1)
|
|
Class
B-4
|
$
7,891,000
|
(1)
|
|
Class
B-5
|
$
7,452,000
|
(1)
|
|
Class
B-6
|
$
4,822,000
|
(1)
|
|
Class
B-7
|
$
4,383,000
|
(1)
|
|
Class
B-8
|
$
4,384,000
|
(1)
|
|
Class
B-9
|
$
4,384,000
|
(1)
|
|
Class
C
|
(2)
|
(2)
|
|
Class
P
|
$
100.00
|
(3)
|
|
Class
R
|
(4)
|
(4)
|
|
Class
ES
|
(5)
|
(5)
|
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through Rate.” For purposes of the
REMIC Provisions, for the first Distribution Date only, interest
accrued
on any Class of LIBOR Certificates at a Pass-Through Rate in excess
of the
Middle-Tier Net WAC Cap shall be deemed to have been paid from the
Basis
Risk Reserve Fund.
|
|
(2)
|
The
Class C Certificates shall have an initial principal balance of
$4,382,983.31. The Class C Certificates also comprise a notional
component
having a notional amount that at all times will equal the aggregate
of the
principal balances of the Middle-Tier Regular Interests (i.e., the
Pool
Collateral Balance). For each Distribution Date (and the related
Accrual
Period), the notional component shall bear interest at a rate equal
to the
excess of (a) the weighted average of the interest rates on the
Middle-Tier Regular Interests (other than the MT-I and MT-C Interests),
weighted on the basis of the principal balance of each such Middle-Tier
Regular Interest, over (b) the Adjusted Middle-Tier WAC. For any
Distribution Date, interest that accrues on the notional component
of the
Class C Certificates shall be deferred to the extent of any increase
in
the Overcollateralized Amount on such date. Such deferred interest
shall
not itself bear interest. In addition to the rights set forth above,
the
Class C Certificates shall also evidence ownership of the MT-I and
MT-C
Interests in the Middle-Tier REMIC.
|
5
|
(3)
|
The
Class P Certificates shall not bear interest at a stated rate. The
Class P
Certificates shall have an initial Class Principal Balance of $100.00.
Prepayment Penalty Amounts paid with respect to the Mortgage Loans
shall
be distributed to the Class P
Certificates.
|
|
(4)
|
The
Class R Certificates represent the sole class of residual interest
in the
Upper-Tier REMIC and do not have a principal balance or a pass-through
rate. In addition, the Class R Certificates represent ownership of
the
LT-R Interest in the Lower-Tier REMIC and the MT-R Interest in the
Middle-Tier REMIC.
|
|
(5)
|
The
Class ES Certificates are an interest-only Certificates and for each
Distribution Date the Class ES Certificates shall receive the Class
ES
Distributable Amount. The Class ES Certificates shall represent an
interest in the Trust Fund, but shall not represent an interest in
any
REMIC created hereby.
|
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.
“Acceptable
Successor Servicer”:
A
FHLMC- or FNMA-approved servicer that is (i) reasonably acceptable to the
Trustee and (ii) acceptable to each Rating Agency, as evidenced by a letter
from
each such Rating Agency delivered to the Trustee that such entity’s acting as a
successor servicer will not result in a qualification, withdrawal or downgrade
of the then-current rating of any of the Certificates.
“Account”:
The
Distribution Account, the Yield Maintenance Trust Account, the Yield Maintenance
Account, the Final Maturity Reserve Account, the Basis Risk Reserve Fund, the
Servicing Account, the Capitalized Interest Account or the Prefunding 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 LIBOR
Certificates will be calculated based upon a 360-day year and the actual number
of days in each Accrual Period. With respect to any Distribution Date, the
Class
C Certificates, each Lower-Tier Regular Interest and each Middle-Tier Regular
Interest, the calendar month preceding such Distribution Date. Interest for
the
Class C Certificates, each Lower-Tier Regular Interest and each Middle-Tier
Regular Interest will be calculated based on a 360-day year and assuming each
month has 30 days.
6
“Additional
Disclosure Notification”:
As
defined in Section 3.07(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.07(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.07(b).
“Adjusted
Cap Rate”:
Any of
the Group 1 Adjusted Cap Rate, the Group 2 Adjusted Cap Rate, or the Subordinate
Adjusted Cap Rate.
“Adjusted
Lower-Tier WAC”:
For
any Distribution Date (and the related Accrual Period), the product of (i)
2
multiplied by (ii) the weighted average of the interest rates on the Lower-Tier
Regular Interests (other than the Class LT-I Interest), weighted on the basis
of
their principal balances as of the first day of the related Accrual Period
and
computed for this purpose by first (a) subjecting the interest rate on the
LT-P
and LT-Q Interests to a cap of 0.00%, and (b) subjecting the interest rate
on
each of the XX-0X-0X, XX-0X-0X, XX-0X-0X, XX-0X-0X, XX-X-0, XX-X-0, XX-X-0,
XX-X-0, XX-X-0, XX-X-0, XX-X-0, XX-X-0 and LT-B-9 Interests to a cap equal
to
the product of Pass-Through Rate for the Corresponding Class of Certificates
for
such Distribution Date multiplied by the quotient of the actual number of days
in the Accrual Period divided
by
30.
“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 Servicer including, the Trustee in its capacity as successor
Servicer in respect of such Distribution Date pursuant to Section 5.05 (or
by
the Trustee pursuant to Section 7.02 as successor Servicer) or by the Servicer
in accordance with the Servicing Agreement for such Distribution
Date.
“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.
7
“Aggregate
Collateral Balance”:
With
respect to any date of determination (other than the Closing Date), an amount
equal to the aggregate Stated Principal Balance of the Mortgage Loans
plus
the
amount, if any, then on deposit in the Prefunding Account. With respect to
the
Closing Date, an amount equal to the aggregate Stated Principal Balance of
the
Mortgage Loans as of the Initial Cut-off Date plus
the
amount on deposit in the Prefunding Account on the Initial Closing
Date.
“Aggregate
Final Maturity Reserve Amount”:
With
respect to any Distribution Date, the sum of the Group I Final Maturity Reserve
Amount for such date and the Group II Final Maturity Reserve Amount for such
date.
“Aggregate
Subsequent Transfer Amount”:
With
respect to any Subsequent Transfer Date, the aggregate Stated Principal Balance
as of the applicable Subsequent Cut-off Date of the Subsequent Mortgage Loans
conveyed on such Subsequent Transfer Date, as listed on the revised Mortgage
Loan Schedule delivered pursuant to Section 2.01(b); provided,
however,
that
such amount shall not exceed the amount on deposit in the Prefunding Account
as
of such Subsequent Transfer Date.
“Agreement”:
This
Pooling and Servicing Agreement dated as of April 1, 2007, as amended,
supplemented and otherwise modified from time to time.
“Allocated
Realized Loss Amount”:
With
respect to any Distribution Date and any Class of Offered Certificates, an
amount equal the sum of any Realized Losses allocated to that Class of
Certificates on such Distribution Date and any Allocated Realized Loss Amounts
previously allocated to such Class pursuant to Section 5.03 minus
any
amounts distributed to such Class pursuant to Section 5.01(a) in respect of
Allocated Realized Loss Amounts.
“Apportioned
Principal Balance”:
With
respect to any Class of Subordinate Certificates, either Loan Group and any
Distribution Date, the Class Principal Balance of such Class immediately prior
to such Distribution Date multiplied by a fraction, the numerator of which
is
the Subordinate Component for the related Loan Group for such date and the
denominator of which is the sum of the Subordinate Components (in the aggregate)
for such date.
“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 and any Loan Group, 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 in such Loan Group,
(b) Net Liquidation Proceeds, Insurance Proceeds (including from primary
mortgage insurance policies), Principal Prepayments (excluding Prepayment
Penalty Amounts), Recoveries and other unscheduled recoveries of principal
and
interest in respect of the Mortgage Loans in such Loan Group 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
in
such Loan Group, (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 Servicer pursuant to the Servicing Agreement and Compensating
Interest Payments deposited in the Distribution Account for that Distribution
Date in respect of the Mortgage Loans in such Loan Group, (e) the aggregate
of the Purchase Prices, Substitution Adjustments, Repurchase Prices and other
amounts collected for purchases or substitutions pursuant to Section 2.03
deposited in the Distribution Account during the related Prepayment Period
in
respect of the Mortgage Loans in such Loan Group, (f) the aggregate of any
Advances made by the Servicer for that Distribution Date in respect of the
Mortgage Loans in such Loan Group, (g) the aggregate of any Advances made
by the Trustee (as successor Servicer) for such Distribution Date pursuant
to
Section 7.02 hereof in respect of the Mortgage Loans in such Loan Group and
(h) the Termination Price allocated to such Loan Group on the Distribution
Date on which the Trust Fund is terminated and (i) with respect to the
Distribution Date in the month immediately following the end of the Prefunding
Period, any amounts remaining in the Prefunding Account (other than investment
earnings thereon); minus
(ii) the sum of (u) if there is a Deficiency Amount (i) prior to the end of
the Prefunding Period, any amount remaining in the Prefunding Account equal
to
such Deficiency Amount, and (ii) in the case of the Distribution Date
immediately following the end of the Prefunding Period, the amount released
from
the Prefunding Account and transferred to the Distribution Account, if any,
equal to such Deficiency Amount, (v) to the extent of amounts attributable
to interest, the Expense Fees for such Distribution Date in respect of the
Mortgage Loans in such Loan Group, (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 in such Loan Group and other
amounts as to which the 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 pursuant to Section 8.05 and to the Custodian pursuant
to
this Agreement in respect of Mortgage Loans in such Loan Group or if not related
to a Mortgage Loan, allocated to each Loan Group on a pro
rata
basis
and (y) amounts deposited in the Distribution Account, as the case may be,
in
error, in respect of Mortgage Loans in such Loan Group.
8
“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);
9
(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.
“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 Iowa, the State of Pennsylvania, the State of
New
York or in the cities in which the Corporate Trust Office of the Trustee and
the
Certificate Registrar are 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.
“Capitalized
Interest Account”:
The account established and maintained by the Trustee pursuant to Section 4.07.
Such account will not be an asset of any REMIC.
“Capitalized
Interest Requirement”:
As to
the
first Distribution Date, an amount equal to the excess of the Basis Risk
Shortfalls for such Distribution Date over the sum of (i) the Required Reserve
Fund Deposit for such Distribution Date and (ii) any amounts available from
the
Yield Maintenance Account to pay Basis Risk Shortfalls for such Distribution
Date.
“Certificate”:
Any
Regular Certificate, Residual Certificate, Class C Certificate, Class ES
Certificate or Class P Certificate.
“Certificate
Group 1”:
At any
time, the Group 1 Certificates.
“Certificate
Group 2”:
At any
time, the Group 2 Certificates.
10
“Certificate
Group”:
Either
Certificate Group 1 or Certificate Group 2, as the context
requires.
“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 the Class C, Class
ES
and Class R Certificates) 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. will act as Certificate Registrar, for so long as it
is
the Trustee 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
Trustee, the NIMS Insurer, the Credit Risk Manager, the Servicer 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 3.06.
“Certifying
Person”:
As
defined in Section 3.06.
“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
B-1 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-1 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date) and (ii) the Class Principal Balance of the Class B-1 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) for each Distribution Date prior to May 2013, 81.250% and
thereafter 85.000% and (ii) the Aggregate Collateral Balance as of the last
day
of the related Due Period (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 (B) the Aggregate Collateral Balance as of the last day of the
related Due Period (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) minus
the
Overcollateralization Floor.
11
“Class
B-2 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-2 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date) and (iii) the Class Principal Balance of
the
Class B-2 Certificates immediately prior to such Distribution Date over (y)
the
lesser of (A) the product of (i) for each Distribution Date prior to May 2013,
85.875% and thereafter 88.700% and (ii) the Aggregate Collateral Balance as
of
the last day of the related Due Period (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 (B) the Aggregate Collateral Balance as of the
last day of the related Due Period (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) minus
the
Overcollateralization Floor.
“Class
B-3 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-3 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date) and (iv) the Class
Principal Balance of the Class B-3 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) for each
Distribution Date prior to May 2013, 89.250% and thereafter 91.400% and (ii)
the
Aggregate Collateral Balance as of the last day of the related Due Period (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 (B) the Aggregate
Collateral Balance as of the last day of the related Due Period (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) minus
the
Overcollateralization Floor.
“Class
B-4 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-4 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B- 3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date) and (v) the Class Principal Balance of the Class B-4 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) for each Distribution Date prior to May 2013, 91.500% and
thereafter 93.200% and (ii) the Aggregate Collateral Balance as of the last
day
of the related Due Period (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 (B) the Aggregate Collateral Balance as of the last day of the
related Due Period (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) minus
the
Overcollateralization Floor.
12
“Class
B-5 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-5 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B-3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date), (v) the Class Principal Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal Distribution
Amount on such Distribution Date) and (vi) the Class Principal Balance of the
Class B-5 Certificates immediately prior to such Distribution Date over (y)
the
lesser of (A) the product of (i) for each Distribution Date prior to May 2013,
93.625% and thereafter 94.900% and (ii) the Aggregate Collateral Balance as
of
the last day of the related Due Period (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 (B) the Aggregate Collateral Balance as of the
last day of the related Due Period (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) minus
the
Overcollateralization Floor.
“Class
B-6 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-6 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B-3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date), (v) the Class Principal Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal Distribution
Amount on such Distribution Date), (vi) the Class Principal Balance of the
Class
B-5 Certificates (after taking into account the distribution of the Class B-5
Principal Distribution Amount on such Distribution Date) and (vii) the Class
Principal Balance of the Class B-6 Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) for each
Distribution Date prior to May 2013, 95.000% and thereafter 96.000% and (ii)
the
Aggregate Collateral Balance as of the last day of the related Due Period (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 (B) the Aggregate
Collateral Balance as of the last day of the related Due Period (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) minus
the
Overcollateralization Floor.
13
“Class
B-7 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-7 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B-3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date), (v) the Class Principal Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal Distribution
Amount on such Distribution Date), (vi) the Class Principal Balance of the
Class
B-5 Certificates (after taking into account the distribution of the Class B-5
Principal Distribution Amount on such Distribution Date), (vii) the Class
Principal Balance of the Class B-6 Certificates (after taking into account
the
distribution of the Class B-6 Principal Distribution Amount on such Distribution
Date) and (viii) the Class Principal Balance of the Class B-7 Certificates
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) for each Distribution Date prior to May 2013, 96.250% and
thereafter 97.000% and (ii) the Aggregate Collateral Balance as of the last
day
of the related Due Period (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 (B) the Aggregate Collateral Balance as of the last day of the
related Due Period (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) minus
the
Overcollateralization Floor.
“Class
B-8 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-8 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B-3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date), (v) the Class Principal Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal Distribution
Amount on such Distribution Date), (vi) the Class Principal Balance of the
Class
B-5 Certificates (after taking into account the distribution of the Class B-5
Principal Distribution Amount on such Distribution Date), (vii) the Class
Principal Balance of the Class B-6 Certificates (after taking into account
the
distribution of the Class B-6 Principal Distribution Amount on such Distribution
Date), (viii) the Class Principal Balance of the Class B-7 Certificates (after
taking into account the distribution of the Class B-7 Principal Distribution
Amount on such Distribution Date) and (ix) the Class Principal Balance of the
Class B-8 Certificates immediately prior to such Distribution Date over (y)
the
lesser of (A) the product of (i) for each Distribution Date prior to May 2013,
97.500% and thereafter 98.000% and (ii) the Aggregate Collateral Balance as
of
the last day of the related Due Period (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 (B) the Aggregate Collateral Balance as of the
last day of the related Due Period (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) minus
the
Overcollateralization Floor.
14
“Class
B-9 Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the lesser of (a) the
Class
Principal Balance of the Class B-9 Certificates immediately prior to such
Distribution Date and (b) the excess of (x) the sum of (i) the aggregate Class
Principal Balance of the Senior Certificates (after taking into account the
distribution of the Senior Principal Distribution Amount on such Distribution
Date), (ii) the Class Principal Balance of the Class B-1 Certificates (after
taking into account the distribution of the Class B-1 Principal Distribution
Amount on such Distribution Date), (iii) the Class Principal Balance of the
Class B-2 Certificates (after taking into account the distribution of the Class
B-2 Principal Distribution Amount on such Distribution Date), (iv) the Class
Principal Balance of the Class B-3 Certificates (after taking into account
the
distribution of the Class B-3 Principal Distribution Amount on such Distribution
Date), (v) the Class Principal Balance of the Class B-4 Certificates (after
taking into account the distribution of the Class B-4 Principal Distribution
Amount on such Distribution Date), (vi) the Class Principal Balance of the
Class
B-5 Certificates (after taking into account the distribution of the Class B-5
Principal Distribution Amount on such Distribution Date), (vii) the Class
Principal Balance of the Class B-6 Certificates (after taking into account
the
distribution of the Class B-6 Principal Distribution Amount on such Distribution
Date), (viii) the Class Principal Balance of the Class B-7 Certificates (after
taking into account the distribution of the Class B-7 Principal Distribution
Amount on such Distribution Date), (ix) the Class Principal Balance of the
Class
B-8 Certificates immediately prior to such Distribution Date (after taking
into
account the distribution of the Class B-8 Principal Distribution Amount on
such
Distribution Date) and (x) the Class Principal Balance of the Class B-9
Certificates immediately prior to such Distribution Date over (y) the lesser
of
(A) the product of (i) for each Distribution Date prior to May 2013, 98.750%
and
thereafter 99.000% and (ii) the Aggregate Collateral Balance as of the last
day
of the related Due Period (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 (B) the Aggregate Collateral Balance as of the last day of the
related Due Period (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) minus
the
Overcollateralization Floor.
15
“Class
C Distributable Amount”:
With
respect to any Distribution Date, the amount of interest that has accrued on
the
Class C Notional Balance, as described in the Preliminary Statement, but that
has not been distributed pursuant to Section 5.01(a)(iv)(I) hereof prior to
such
Distribution Date. In addition, such amount shall include the initial
Overcollateralized Amount (less the $100 of such amount allocated to the Class
P
Certificates) to the extent such amount has not been distributed on prior
Distribution Dates as part of the Overcollateralization Release
Amount.
“Class
C Notional Balance”:
With
respect to any Distribution Date (and the related Accrual Period) the aggregate
principal balance of the Middle-Tier Regular Interests (the Pool Collateral
Balance) as specified in the Preliminary Statement.
“Class
ES Distributable Amount”:
With
respect to each Distribution Date and each Mortgage Loan serviced by GMACM,
an
amount equal to one month’s interest at the Excess Servicing Fee Rate on the
Stated Principal Balance of such Mortgage Loan as of the Due Date in the month
of such Distribution Date (prior to giving effect to any Scheduled Payments
due
on such Mortgage Loan on such Due Date).
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Penalty Amounts in respect
of
the Mortgage Loans received by the Servicer for the related Prepayment
Period.
“Class
Principal Balance”:
With
respect to any Distribution Date and any Class of Regular Certificates, the
Original Class Principal Balance thereof as (a) reduced by the sum of (x) all
amounts actually distributed in respect of principal of that Class (including
amounts paid from the Yield Maintenance Account pursuant to Section 5.01(h)(vii)
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, and (b) increased by (x) the amount of Deferred Interest
allocated to such Class of Certificates on such Distribution Date as set forth
in Section 5.02 and (y) the amount paid in respect of Allocated Realized Loss
Amounts to such Class of Certificates on such Distribution Date from the Yield
Maintenance Account pursuant to Section 5.01(h)(i) or (ii) and (c) any
Recoveries allocated to such Class of Certificates pursuant to Section
5.08.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
April
27, 2007.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“COFI”:
The
one-month weighted average cost of funds for savings institutions that are
member institutions of various federal banking districts, most commonly the
11th
District members of the Federal Home Loan Bank of San Francisco.
16
“COFI
Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the COFI index.
“Collateral
Account”:
The
account established and maintained by the Trustee in accordance with the
provisions of Section 5.11.
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, the amount specified to be paid by the
Servicer pursuant to Section 5.05 of the Servicing Agreement.
“Controlling
Person”:
With
respect to any Person, any other Person who “controls” such Person within the
meaning of the Securities Act.
“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 Xxxxx Fargo Bank, N.A., 0000 Xxx Xxxxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Client Service Manager, HarborView
Mortgage Loan Trust 2007-3, or at such other address as the Trustee may
designate from time to time by notice to the Certificateholders, the Depositor
and the Seller. With respect to the Certificate Registrar and 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: Client Service Manager, HarborView Mortgage Loan Trust
2007-3.
17
“Corresponding
Class”:
With
respect to each class of Middle Tier Regular Interests, the Class or Classes
of
Certificates corresponding to such class as set forth in the Preliminary
Statement.
“Credit
Enhancement Percentage”:
With
respect to any Distribution Date and any Class of Certificates, the percentage
obtained by dividing (i) the sum of (x) the aggregate Class Principal Balance
of
the Subordinate Certificates subordinate to such Class and (y) the
Overcollateralized Amount by (y) the Aggregate Collateral Principal
Balance.
|
Class(es)
|
Initial
Credit Enhancement Percentage
|
Target
Credit Enhancement Percentage before May 2013 or Stepdown
Date
|
Target
Credit Enhancement Percentage on or after May 2013 or Stepdown
Date
|
|
Senior
|
12.200%
|
30.500%
|
24.400%
|
|
B-1
|
7.500%
|
18.750%
|
15.000%
|
|
B-2
|
5.650%
|
14.125%
|
11.300%
|
|
B-3
|
4.300%
|
10.750%
|
8.600%
|
|
B-4
|
3.400%
|
8.500%
|
6.800%
|
|
B-5
|
2.550%
|
6.375%
|
5.100%
|
|
B-6
|
2.000%
|
5.000%
|
4.000%
|
|
B-7
|
1.500%
|
3.750%
|
3.000%
|
|
B-8
|
1.000%
|
2.500%
|
2.000%
|
|
B-9
|
0.000%
|
1.250%
|
1.000%
|
“Credit
Risk Management Agreement”:
The
credit risk management agreement dated as of the Closing Date, entered into
by
the Servicer and the Credit Risk Manager.
“Credit
Risk Manager”:
Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and its successors
in interest 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.
“Custodian”:
For
purposes of this Agreement, the Custodian shall be Deutsche Bank National Trust
Company.
18
“Cut-off
Date”:
The
Initial Cut-off Date or the Subsequent Cut-off Date, as applicable.
“Cut-off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-off Date Principal Balances of all of the Mortgage
Loans.
“Cut-off
Date Collateral Balance”:
With
respect to any Distribution Date, the sum of (i) the aggregate Stated Principal
Balance of all Initial Mortgage Loans as of the Initial Cut-off Date and (ii)
the Prefunded Amount.
“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
applicable Cut-off Date whether or not received as of the applicable 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.
“Deferred
Interest”:
With
respect to each Mortgage Loan and each related Due Date, will be the excess,
if
any, of the amount of interest accrued on such Mortgage Loan from the preceding
Due Date to such due date over the portion of the Monthly Payment allocated
to
interest for such Due Date.
“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 or assigns.
“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.
19
“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”:
With
respect to any Distribution Date and each Mortgage Loan, the date each month,
as
set forth in the Servicing Agreement, on which the Servicer determines the
amount of all funds required to be remitted to the Trustee on the Servicer
Remittance Date with respect to the Mortgage Loans.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Trustee based upon an Opinion of Counsel
provided to the Trustee by nationally recognized counsel acceptable to the
Trustee 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 Trustee pursuant to
Section 4.02 hereof for the benefit of the Certificateholders and designated
“Distribution Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust for the
registered Holders of HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates, Series 2007-3” 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 May 2007.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“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.
“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:
20
|
(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 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 Trustee. Eligible Accounts
may
bear interest.
|
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class 2A-1B and Class 2A-1C Certificates, the Subordinate Certificates
and
the Residual Certificate and (ii) any Class 1A-1A or Class 2A-1A Certificates
that are not rated at least “AA-” (or its equivalent) by at least one nationally
rated statistical rating organization upon acquisition.
“ERISA-Restricted
Trust Certificate”:
The
Class 1A-1 and Class 2A-1A Certificates.
“Event
of Default”:
As
defined in the Servicing Agreement.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Excess
Servicing Fee Rate”:
With
respect to any Mortgage Loan, the excess, if any, of 0.375% per annum over
the
Subservicing Fee Rate.
“Expense
Fee”:
With
respect to any Mortgage Loan, the sum of (i) the Servicing Fee, (ii) the Credit
Risk Manager Fee, (iii) any Bulk PMI Fee, if applicable, and (iv) with respect
to any Lender-Paid Mortgage Insurance Loan, the Lender-Paid Mortgage Insurance
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.
21
“Extra
Principal Distribution Amount”:
With
respect to any Distribution Date, the lesser of (x) the Net Monthly Excess
Cashflow for such Distribution Date (after distribution of any amounts pursuant
to Section 5.01(a)(iii)(A) and (B)) and (y) the Overcollateralization Deficiency
Amount for such Distribution Date.
“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 April 2037.
“Final
Maturity Reserve Account”:
The
account created pursuant to Section 5.09 of this Agreement.
“Final
Maturity Reserve Rate”:
A per
annum rate equal to the product of (i) 1.00% 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 as of the
applicable Cut-off Date of all of the Mortgage Loans.
“Final
Maturity Reserve Schedule”:
With
respect to each Distribution Date on or after the Distribution Date in May
2017
through and including Final Maturity Reserve Termination Date, the aggregate
principal balance set forth on Schedule II hereto for that Distribution
Date.
“Final
Maturity Reserve Termination Date”:
With
respect to each Distribution Date on or after the Distribution Date in May
2017,
the earlier of (i) the Distribution Date in April 2037 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
contemplated by Sections 2.03 and 10.01), a determination made by the Servicer,
and reported to the Trustee, that all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which the Servicer expects to be finally
recoverable in respect thereof have been so recovered.
“Fitch”:
Fitch
Ratings and its successors.
“Form
8-K Disclosure Information”:
As
defined in Section 3.07(c)(i).
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor
thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors in interest
and
assigns.
22
“GMACM”:
GMAC
Mortgage, LLC, as a Servicer of the Mortgage Loans as set forth and as
individually defined in the Mortgage Loan Schedule hereto, and any successors
in
interest and assigns.
“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.
“Group
1 Adjusted Cap Rate”:
With
respect to any Distribution Date and the Class 1A-1A Certificates, the Net
WAC
Cap for such Distribution Date, determined by first reducing the Net WAC by
a
per annum rate equal to the product of (i) the Net Deferred Interest for Loan
Group 1 for that Distribution Date multiplied by (ii) 12, divided
by
the Loan
Group Collateral Balance for Loan Group 1 as of the first day of the month
before such Distribution Date (or in the case of the first Distribution Date,
as
of the Initial Cut-off Date).
“Group
1 Certificates”:
The
Class 1A-1A Certificates.
“Group
1 Final Maturity Reserve Amount”:
With
respect to each Distribution Date prior to the Distribution Date in May 2017,
zero. With respect to each Distribution Date commencing on the Distribution
Date
in May 2017 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 quotient of the Final Maturity Reserve Rate divided
by
12 and
(ii) the aggregate Stated Principal Balance of the Group 1 Mortgage Loans on
the
first day of the related Due Period (not including for this purpose Group 1
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to the Distribution Date) and (y) the Interest Remittance
Amount for Loan Group 1 after making any withdrawals from the Distribution
Account pursuant to Section 4.03(a). Notwithstanding the foregoing, if on any
Distribution Date 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 applicable amount set forth in the Final Maturity Reserve
Schedule, the Final Maturity Reserve Amount shall equal zero.
“Group
1 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan Schedule and
that
has a Stated Principal Balance at origination that conforms to Xxxxxxx Mac
loan
limits.
“Group
1 Prefunded Amount”:
The
amount deposited in the Prefunding Account on the Closing Date to purchase
additional Group 1 Mortgage Loans, which shall equal $183,724,841.
“Group
1 Principal Distribution Amount”:
For
any Distribution Date on or after the Stepdown Date and as long as a Trigger
Event has not occurred or is not continuing with respect to such Distribution
Date, will be the lesser of (a) the greater of (x) the Senior Principal
Distribution Amount multiplied by the Group 1 Principal Distribution Percentage
and (y) the amount by which the aggregate Class Principal Balance of the Group
1
Certificates exceeds the Stated Principal Balances of the Group 1 Mortgage
Loans
as of the last day of the related Prepayment Period (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 (b) the aggregate Class Principal Balance
of
the Group 1 Certificates; provided,
however,
that
with respect to any such Distribution Date on which the aggregate Class
Principal Balance of the Group 2 Certificates is reduced to zero, the Group
2
Principal Distribution Percentage of the Senior Principal Distribution Amount
available for distribution to the Senior Certificates in excess of the amount
necessary to reduce the aggregate Class Principal Balance of the Group 2
Certificates to zero will be applied to increase the Group 1 Principal
Distribution Amount (so long as any Class of Group 1 Certificates is
outstanding).
23
“Group
1 Principal Distribution Percentage”:
For
any Distribution Date, a fraction, the numerator of which is (a) the aggregate
Stated Principal Balance of the Group 1 Mortgage Loans as of the first day
of
the related Due Period minus
(b) the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans as of the
last
day of the related Due Period (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, but without giving effect to any Deferred Interest and any Realized
Losses during the related Due Period), and the denominator of which is (a)
the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day
of
the related Due Period minus
(b) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (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, but without giving effect to any Deferred Interest and any Realized
Losses during the related Due Period).
“Group
2 Adjusted Cap Rate”:
With
respect to any Distribution Date and the Group 2 Certificates, the Net WAC
Cap
for such Distribution Date, determined by first reducing the Net WAC by a per
annum rate equal to the product of (i) the Net Deferred Interest for Loan Group
2 for that Distribution Date multiplied by (ii) 12, divided
by
the Loan
Group Collateral Balance for Loan Group 2 as of the first day of the month
before such Distribution Date (or in the case of the first Distribution Date,
as
of the Initial Cut-off Date).
“Group
2 Certificates”:
The
Class 2A-1A, Class 2A-1B and Class 2A-1C Certificates.
“Group
2 Final Maturity Reserve Amount”:
With
respect to each Distribution Date prior to the Distribution Date in May 2017,
zero. With respect to each Distribution Date commencing on the Distribution
Date
in May 2017 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 quotient of the Final Maturity Reserve Rate divided
by
12 and
(ii) the aggregate Stated Principal Balance of the Group 2 Mortgage Loans on
the
first day of the related Due Period (not including for this purpose Group 2
Mortgage Loans for which prepayments in full have been received and distributed
in the month prior to the Distribution Date) and (y) the Interest Remittance
Amount for Loan Group 2 after making any withdrawals from the Distribution
Account pursuant to Section 4.03(a). Notwithstanding the foregoing, if on any
Distribution Date 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 applicable amount set forth in the Final Maturity Reserve
Schedule, the Final Maturity Reserve Amount shall equal zero.
24
“Group
2 Mortgage Loan”:
A
Mortgage Loan that is identified as such on the Mortgage Loan Schedule and
that
has a Stated Principal Balance at origination that may or may not conform to
Xxxxxx Mae or Xxxxxxx Mac loan limits.
“Group
2 Prefunded Amount”:
The
amount deposited in the Prefunding Account on the Closing Date to purchase
additional Group 2 Mortgage Loans, which shall equal $178,414,883.
“Group
2 Principal Distribution Amount”:
For
any Distribution Date on or after the Stepdown Date and as long as a Trigger
Event has not occurred or is not continuing with respect to such Distribution
Date, will be the lesser of (a) the greater of (x) the Senior Principal
Distribution Amount multiplied by the Group 2 Principal Distribution Percentage
and (y) the amount by which the aggregate Class Principal Balance of the Group
2
Certificates exceeds the Stated Principal Balances of the Group 2 Mortgage
Loans
as of the last day of the related Prepayment Period (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 (b) the aggregate Class Principal Balance
of
the Group 2 Certificates; provided,
however,
that
with respect to any such Distribution Date on which the aggregate Class
Principal Balance of the Group 1 Certificates is reduced to zero, the Group
1
Principal Distribution Percentage of the Senior Principal Distribution Amount
available for distribution to the Senior Certificates in excess of the amount
necessary to reduce the aggregate Class Principal Balance of the Group 1
Certificates to zero will be applied to increase the Group 2 Principal
Distribution Amount (so long as any Class of Group 2 Certificates is
outstanding).
“Group
2 Principal Distribution Percentage”:
For
any Distribution Date, a fraction, the numerator of which is (a) the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans as of the first day
of
the related Due Period minus
(b) the
aggregate Stated Principal Balance of the Group 2 Mortgage Loans as of the
last
day of the related Due Period (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, but without giving effect to any Deferred Interest and any Realized
Losses during the related Due Period), and the denominator of which is (a)
the
aggregate Stated Principal Balance of the Mortgage Loans as of the first day
of
the related Prepayment Period minus
(b) the
aggregate Stated Principal Balance of the Mortgage Loans as of the last day
of
the related Due Period (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 Due Period,
but
without giving effect to any Deferred Interest and any Realized Losses during
the related Due Period).
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Depositor, the Servicer, the Custodian and the NIMS Insurer
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.
25
“Indenture”:
An
indenture relating to the issuance of notes secured by the Class C Certificates,
the Class P Certificates and/or the Residual Certificates (or any portion
thereof) which may or may not be insured by the NIMS Insurer.
“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 Class C, Class ES and Class R
Certificates, the amount designated “Initial Certificate Principal Balance” on
the face thereof.
“Initial
Cut-off Date”:
With
respect to any Initial Mortgage Loan, the Close of Business in New York City
on
April 1, 2007.
“Initial
Group 1 Mortgage Loans”:
Any of
the Group 1 Mortgage Loans with a Cut-off Date of the Initial Cut-off Date
and
which are included in the Trust Fund as of the Closing Date. The aggregate
Stated Principal Balance of the Initial Group 1 Mortgage Loans is equal to
$150,329,798.81.
“Initial
Group 2 Mortgage Loans”:
Any of
the Group 2 Mortgage Loans with a Cut-off Date of the Initial Cut-off Date
and
which are included in the Trust Fund as of the Closing Date. The aggregate
Stated Principal Balance of the Initial Group 2 Mortgage Loans is equal to
$364,244,560.51.
“Initial
LIBOR Rate”:
5.320%.
“Initial
Mortgage Loan”:
Any of
the Initial Group 1 Mortgage Loans or the Initial Group 2 Mortgage Loans
conveyed to the Trust Fund on the Closing Date pursuant to Section 2.01
hereof, which Mortgage Loans shall be listed on the Mortgage Loan Schedule
delivered pursuant to this Agreement.
“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 Servicing
Agreement.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates (other than
the
Class C, Class P, Class ES and Class R Certificates), the sum of (i) the
Monthly Interest Distributable Amount for that Class and (ii) the Unpaid
Interest Shortfall Amount for that Class.
26
“Interest
Remittance Amount”:
With
respect to any Distribution Date and any Loan Group, the portion of the
Available Funds for such Distribution Date attributable to interest received
or
advanced with respect to the Mortgage Loans in such Loan Group plus
Principal Prepayments for the related Prepayment Period to the extent of
Deferred Interest for the related Distribution Date.
“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, an amount determined as
follows:
(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”:
Each
Mortgage Loan identified as such in the Mortgage Loan Schedule.
“Lender-Paid
Mortgage Insurance Fee”:
With
respect to any Distribution Date and each Lender Paid Mortgage Insurance
Mortgage Loan, an amount equal to the product of the Lender-Paid Mortgage
Insurance Fee Rate and the outstanding Principal Balance of such Mortgage Loan
as of the first day of the related Due Period.
“Lender-Paid
Mortgage Insurance Fee Rate”:
For
each Lender-Paid Mortgage Insurance Loan and any Distribution Date, the per
annum rate required to be paid in connection with the related lender-paid
mortgage insurance policy for such Mortgage Loan on such Distribution
Date.
“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 Trustee 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.
27
(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 Trustee 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 Trustee
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 Trustee (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.
(b) The
establishment of LIBOR by the Trustee and the Trustee’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 1A-1A, Class 2A-1A, Class 2A-1B and Class 2A-1C Certificates and the
Subordinate 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
Servicer has determined, 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 Servicing
Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Servicer, 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.
28
“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
Servicer as proceeds from the liquidation of such Mortgage Loan, as determined
in accordance with the applicable provisions of the 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 Servicing Agreement, “Liquidation Proceeds” shall also include
amounts realized in connection with such repurchase, substitution or
sale.
“Loan
Group”:
Either
of Loan Group 1 or Loan Group 2, as the context requires.
“Loan
Group Balance”:
With
respect to each Loan Group and any Distribution Date, the aggregate of the
Stated Principal Balances, as of the Close of Business on the first day of
the
month preceding the month in which such Distribution Date occurs, of the
Mortgage Loans in such Loan Group that were Outstanding Mortgage Loans on that
day.
“Loan
Group 1”:
At any
time, the Group 1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 2”:
At any
time, the Group 2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group Collateral Balance”:
With
respect to each Loan Group and any date of determination, the applicable Loan
Group Balance plus the amount, if any, then on deposit in the Prefunding
Account, with respect to the related Loan Group; provided
that the
Loan Group Collateral Balance for each Loan Group as of the Initial Cut-off
Date
will include the Group 1 Prefunded Amount or Group 2 Prefunded Amount, as
applicable.
“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.
“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”:
As
described in the Preliminary Statement.
29
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“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 in interest and
assigns.
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates (other than the Class C, Class P, Class
ES
and Class R Certificates) and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the lesser of the related
Pass-Through Rate and the related Adjusted Cap Rate on the Class Principal
Balance of that Class immediately prior to that Distribution Date; provided,
however,
the
amount so accrued shall be reduced by the Net Interest Shortfalls, if any,
allocated to such Class of Certificates. Net Interest Shortfalls for any Loan
Group shall be allocated among each Class of Senior Certificates related to
such
Loan Group and the Subordinate Certificates based on, in the case of each Class
of related Senior Certificates, the amount of interest accrued in the related
Accrual Period at the applicable Pass-Through Rate, and in the case of each
Class of Subordinate Certificates, the interest accrued in the related Accrual
Period at the applicable Pass-Through Rate determined solely with reference
to
its Apportioned Principal Balance for the Loan Groups to which the Net Interest
Shortfall relates. In addition, for purposes of compliance with the REMIC
Provisions, (A) the Monthly Interest Distributable Amount for each Class of
Subordinate Certificates shall be calculated by reducing the related
Pass-Through Rate by a per annum rate equal to (i) 12 times the Subordinate
Class Expense Share for such Class divided
by
(ii) the
Class Principal Balance of such Class as of the beginning of the related Accrual
Period and (B) such Class shall be deemed to bear interest at such Pass-Through
Rate as so reduced for federal income tax purposes.
“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;
(b)
without giving effect to any extension granted or agreed to by the Servicer
pursuant to the applicable provisions of the Servicing Agreement; and (c) on
the
assumption that all other amounts, if any, due under such Mortgage Loan are
paid
when due.
30
“Moody’s”:
Xxxxx’x Investors Service, Inc. and its successors.
“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(e) 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.
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of April 1, 2007, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s rights and interest in the Servicing Agreement) 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;
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|
(iii)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
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|
(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 or (f) other type
of
Residential Dwelling;
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|
(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;
|
|
(vi)
|
the
original months to maturity;
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31
|
(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;
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(ix)
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[Reserved]
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(x)
|
the
Loan Rate in effect immediately following the Cut-off
Date;
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|
(xi)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
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|
(xii)
|
the
stated maturity date;
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|
(xiii)
|
the
Servicing Fee Rate;
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|
(xiv)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
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|
(xv)
|
the
original principal balance of the Mortgage
Loan;
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|
(xvi)
|
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);
|
|
(xvii)
|
the
Index and Gross Margin specified in related Mortgage Note, if
applicable;
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|
(xviii)
|
the
next Adjustment Date, if
applicable;
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|
(xix)
|
the
Maximum Loan Rate, if applicable;
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|
(xx)
|
the
Value of the Mortgaged Property;
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(xxi)
|
the
sale price of the Mortgaged Property, if
applicable;
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(xxii)
|
the
product code;
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|
(xxiii)
|
whether
the Mortgage Loan is a Lender-Paid Mortgage Insurance Loan, and the
applicable Lender-Paid Mortgage Insurance Fee Rate, if
applicable;
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|
(xxiv)
|
the
Expense Fee Rate therefor;
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|
(xxv)
|
the
respective Loan Group; and
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|
(xxvi)
|
whether
the Mortgage Loan is an SRO Mortgage
Loan.
|
32
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee 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.
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 and
by
Loan Group 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.
“MTA”:
The
twelve-month average yields on United States Treasury securities adjusted to
a
constant maturity of one year as published by the Federal Reserve Board in
Statistical Release H.15(519).
“MTA
Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the MTA index.
“Net
Deferred Interest”:
With
respect to each Loan Group and any Distribution Date, the greater of (i) the
excess, if any, of the Deferred Interest for the related Due Date over the
aggregate amount of any Principal Prepayments in part or in full received during
the related Prepayment Period and (ii) zero.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfalls, if
any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicer under the Servicing Agreement 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, related Servicing Fees and any other
accrued and unpaid fees received and retained in connection with the liquidation
of such Mortgage Loan or Mortgaged Property.
33
“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 May 2017 and on
each Distribution Date thereafter until the Final Maturity Reserve Termination
Date, the Final Maturity Reserve Rate.
“Net
Maximum Rate”:
With
respect to any Mortgage Loan and any Distribution Date, the maximum rate at
which interest could accrue on such Mortgage Loan net of the sum of (a) the
Expense Fee Rate and (b) commencing on the Distribution Date in May 2017 and
on
each Distribution Date thereafter until the Final Maturity Reserve Termination
Date, the Final Maturity Reserve Rate.
“Net
Maximum Rate Cap”:
With
respect to any Distribution Date, the applicable Net WAC Cap, computed for
this
purposes on the basis of the assumption that each Mortgage Loan accrued interest
for the related Accrual Period at its Net Maximum Rate.
“Net
Monthly Excess Cashflow”:
With
respect to any Distribution Date, the sum of (a) any Overcollateralization
Release Amount and (b) the excess of (x) the Available Funds for such
Distribution Date over (y) the sum for such Distribution Date of (A) the Monthly
Interest Distributable Amounts for the LIBOR Certificates, (B) the Unpaid
Interest Shortfall Amounts for the LIBOR Certificates, (C) the Principal
Remittance Amount, (D) the Aggregate Final Maturity Reserve Amount and (E)
the
amount of Principal Prepayments for the related Prepayment Period to the extent
of Deferred Interest for such Distribution Date.
“Net
Realized Losses”:
With
respect to any Class of Certificates and any Distribution Date, the excess
of
(i) the amount of Realized Losses previously allocated to that Class over (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) any payments
received pursuant to Sections 5.01(h)(i) and (ii) from the Yield Maintenance
Account.
“Net
WAC”:
With
respect to the first Distribution Date only, the product of (i) the weighted
average of the Net Loan Rates of the Initial Mortgage Loans as of the Initial
Cut-off Date, weighted on the basis of their Stated Principal Balances on such
date, multiplied by (ii) the quotient of (a) the aggregate of Stated Principal
Balances of the Initial Mortgage Loans on the Initial Cut-off Date divided
by
(b) the sum or the aggregate of the Stated Principal Balances of the Initial
Mortgage Loans as of the Initial Cut-off Date and the amount on deposit in
the
Prefunding Account on such date. With respect to each succeeding Distribution
Date, the weighted average of the Net Loan Rates of the Mortgage Loans as of
the
first day of the related Due Period, weighted on the basis of their Stated
Principal Balances at the beginning of the related Due Period.
“Net
WAC Cap”:
For
the LIBOR Certificates and any Distribution Date is equal to 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.
34
“NIM
Notes”:
Any
net interest margin notes issued by an indenture or other special purpose entity
pursuant to an Indenture in connection with a NIMS Transaction.
“NIM
Redemption Amount”:
As
defined in Section 10.01(a).
“NIM
Residual Securities”:
Any
preference shares, preference certificates or ownership certificates issued
by a
trust or other special purpose entity in connection with a NIMS
Transaction.
“NIMS
Agreement”:
Any
agreement pursuant to which the NIM Notes are issued.
“NIMS
Insurer”:
One or
more insurers issuing financial guaranty insurance policies in connection with
the issuance of NIM Notes.
“NIMS
Transaction”:
Any
issuance by a trust or other special purpose entity of NIM Notes and NIM
Residual Securities, the principal assets of which trust include Class P and
Class C Certificates and payments received thereon.
“Nonrecoverable”:
The
determination by the Servicer in respect of a delinquent Mortgage Loan that
if
it were to make an Advance in respect thereof, such amount would not be
recoverable from any collections or other recoveries (including Liquidation
Proceeds) on such Mortgage Loan.
“Offered
Certificates”:
The
Class 1A-1A, Class 2A-1A, Class 2A-1B, Class 2A-1C, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6, Class B-7 and Class B-8
Certificates.
“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 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, the Seller or the Servicer, acceptable to the Trustee, 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
Capitalized Interest Amount”:
$1,415,978.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates other than the Class C, Class P, Class
ES
and Class R Certificates, the corresponding aggregate amount set forth opposite
the Class designation of such Class in the Preliminary Statement.
35
“Originator”:
Each
party listed as an “Originator” on Exhibit V 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.
“Overcollateralization
Deficiency Amount”:
With
respect to any Distribution Date, the amount, if any, by which the
Overcollateralization Target Amount exceeds the Overcollateralized Amount on
such Distribution Date (assuming that 100% of the Principal Remittance Amount
is
applied as a principal payment on such Distribution Date).
“Overcollateralization
Floor”:
An
amount equal to $4,383,570.
“Overcollateralization
Release Amount”:
With
respect to any Distribution Date, the lesser of (x) the Principal Remittance
Amount for such Distribution Date and (y) the excess, if any, of (i) the
Overcollateralized Amount for such Distribution Date (assuming that 100% of
the
Principal Remittance Amount is applied as a principal payment on such
Distribution Date) over (ii) the Overcollateralization Target Amount for such
Distribution Date.
“Overcollateralization
Target Amount”:
With
respect to any Distribution Date, an amount equal to (i) prior to the Stepdown
Date, 0.50% of (a) the aggregate Stated Principal Balance of the Initial
Mortgage Loans as of the Initial Cut-off Date and (b) the amount on deposit
in
the Prefunding Account on the Closing Date; (ii) on or after the Stepdown Date
so long as a Trigger Event is not in effect, the greater of (x)(I) 1.25% of
the
current Aggregate Collateral Balance prior to the Distribution Date in May
2013
or (II) 1.00% of the current Aggregate Collateral Balance on or after the
Distribution Date in May 2013 and (y) the Overcollateralization Floor; or (iii)
on or after the Stepdown Date and if a Trigger Event is in effect, the
Overcollateralization Target Amount for the immediately preceding Distribution
Date.
“Overcollateralized
Amount”:
With
respect to any Distribution Date, an amount equal to (i) the Aggregate
Collateral Balance of the last day of the related Prepayment Period (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) minus (ii) the
aggregate Certificate Principal Balance of the LIBOR Certificates and the Class
P Certificates as of such Distribution Date (after giving effect to
distributions to be made on such Distribution Date).
“Ownership
Interest”:
With
respect 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 LIBOR Certificates and any Distribution Date, the
rate
set forth below:
36
|
(A)
|
The
Pass-Through Rate for the Class 1A-1A Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
0.200%
per annum (0.400% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(B)
|
The
Pass-Through Rate for the Class 2A-1A Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
0.200%
per annum (0.400% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(C)
|
The
Pass-Through Rate for the Class 2A-1B Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
0.230%
per annum (0.460% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(D)
|
The
Pass-Through Rate for the Class 2A-1C Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
0.290%
per annum (0.580% per annum after the Call Option Date), (ii) the
related
Net
WAC Cap for that Distribution Date and (iii) the Net Maximum Rate
Cap.
|
|
(E)
|
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
0.450%
per annum (0.675% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(F)
|
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
0.800%
per annum (1.200% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(G)
|
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
0.900%
per annum (1.350% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(H)
|
The
Pass-Through Rate for the Class B-4 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.250%
per annum (1.875% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
37
|
(I)
|
The
Pass-Through Rate for the Class B-5 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.500%
per annum (2.250% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(J)
|
The
Pass-Through Rate for the Class B-6 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.750%
per annum (2.625% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(K)
|
The
Pass-Through Rate for the Class B-7 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.750%
per annum (2.625% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(L)
|
The
Pass-Through Rate for the Class B-8 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.750%
per annum (2.625% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
|
(M)
|
The
Pass-Through Rate for the Class B-9 Certificates with respect to
any
Distribution Date shall equal the least of (i) One-Month LIBOR plus
1.750%
per annum (2.625% per annum after the Call Option Date), (ii) the
related Net WAC Cap for that Distribution Date and (iii) the Net
Maximum
Rate Cap.
|
“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof, initially, the
Trustee.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate (other than a Class C, Class P, Class ES and Class
R
Certificate), a fraction, expressed as a percentage, the numerator of which
is
the Initial Certificate Principal Balance represented by such Certificate and
the denominator of which is the Original Class Principal Balance or Original
Class Notional Balance, as applicable, of the related Class. With respect to
the
Class C, Class ES and Class P Certificates, the percentage interest specified
on
the face thereof. With respect to the Class R Certificates, 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 Servicer, the Trustee or any of their respective Affiliates
or
for which an Affiliate of the Trustee serves as an advisor:
38
|
(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 or the 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;
|
|
(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
NIMS
Insurer, the Trustee or any affiliate of the Trustee or for which
the NIMS
Insurer, the Trustee or any of its affiliates acts as an adviser
as long
as such fund is rated in at least the second highest rating category
by
each Rating Agency rating such fund or vehicle; and each of the Trustee
or
the NIMS Insurer may trade with itself or an affiliate when purchasing
or
selling Permitted Investments; and
|
|
(vii)
|
if
previously confirmed in writing to the Trustee, 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.
39
“Permitted
Transferee”:
Any
Transferee of a 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 C, Class P, Class ES and Class R 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 in all Loan Groups that were Outstanding Mortgage
Loans on that day.
“Pool
Collateral Balance”:
As of
any date of determination, the Pool Balance plus the amount, if any, then on
deposit in the Prefunding Account.
“Prefunded
Amount”:
The
amount deposited in the Prefunding Account on the Closing Date, which shall
equal $362,139,724.
“Prefunding
Account”:
The
separate Eligible Account created and maintained by the Trustee pursuant to
Section 4.06 in the name of the Trustee for the benefit of the
Certificateholders and designated “Prefunding Account, Xxxxx Fargo Bank, N.A.,
as Trustee, in trust for the registered Holders of HarborView Mortgage Loan
Trust Mortgage Loan Pass-Through Certificates, Series 2007-2.” Funds in the
Prefunding Account shall be held in trust for the Certificateholders for the
uses and purposes set forth in this Agreement and shall not be a part of any
REMIC created hereunder; provided,
however,
that
any investment income earned from Permitted Investments made with funds in
the
Prefunding Account shall be for the account of the Depositor.
“Prefunding
Period”:
The
period from the Closing Date until the earliest of (i) the date on which the
amount on deposit in the Prefunding Account is reduced to less than $100,000,
(ii) an Event of Default occurs or (iii) May 27, 2007.
“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 Unpaid Basis Risk
Shortfalls, (ii) any unreimbursed Servicing Advances and Advances and any unpaid
Servicing Fees and (iii) all amounts, if any, then due and owing to the Trustee
and the Credit Risk Manager under this Agreement.
“Prepayment
Penalty 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 and deposited into the
Distribution Account during the immediately preceding Prepayment Period, under
the terms of the Servicing Agreement.
40
“Prepayment
Period”:
With
respect to any Distribution Date, the calendar month preceding the month in
which such Distribution Date occurs.
“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, as increased by the amount of any Deferred Interest added
to
the outstanding Principal Balance of such Mortgage Loan pursuant to the terms
of
the related Mortgage Note. 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
Deficiency Amount”:
With
respect to any Distribution Date and any Undercollateralized Group, the excess,
if any, of the aggregate Class Principal Balance of such Undercollateralized
Group immediately prior to such Distribution Date over the sum of the Principal
Balances of the Mortgage Loans in the related Loan Group immediately prior
to
such Distribution Date.
“Principal
Distribution Amount”:
With
respect to any Distribution Date and Loan Group, the excess of (x) the related
Principal Remittance Amount for such Distribution Date over (y) such Loan
Group’s pro rata share, based on the aggregate Stated Principal Balance of the
Mortgage Loans, of the Overcollateralization Release Amount for such
Distribution Date.
“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.
“Principal
Remittance Amount”:
With
respect to each Loan Group and 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 Valuations or Debt Service
Reductions) by the 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 in that Loan Group, deposited to
the
Distribution Account during the related Prepayment Period, (c) the
principal portion of any related Substitution Adjustments with respect to that
Loan Group 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 in that Loan Group
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 in that Loan Group other than Recoveries,
(f) all Principal Prepayments (net of portions of Principal Prepayments
applied in respect of Deferred Interest pursuant to Section 5.01(a)(i)) in
part
or in full on Mortgage Loans received by the Servicer during the related
Prepayment Period, net of Deferred Interest, (g) all Recoveries related to
that
Loan Group received during the related Prepayment Period, (h) the outstanding
principal balance of each Mortgage Loan purchased from the Trust Fund by the
NIMS Insurer (in the case of certain Mortgage Loans 90 days or more delinquent),
(i) with respect to the June 2007 Distribution Date only, any amount remaining
in the Prefunding Account at the end of the Prefunding Period in respect of
each
Loan Group and (j) on the Distribution Date on which the Trust Fund is to
be terminated pursuant to Section 10.01 hereof, that portion of the Termination
Price in respect of principal for that Loan Group.
41
“Private
Certificates”:
The
Class B-9, Class C, Class ES, Class P and Class R Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated April 26, 2007 relating to the initial
offering of the Class B-9 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 March
26,
2007, relating to the Offered Certificates.
“Prospectus
Supplement”:
That
certain prospectus supplement dated April 26, 2007, relating to the initial
offering of the Offered 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, as listed on Exhibit V 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, 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 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 Servicer is repurchasing such Mortgage Loan,
the
Loan Rate minus the 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 Servicer is repurchasing such Mortgage Loan, the Loan
Rate
minus the 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.
42
“Qualified
Institutional Buyer”:
As
defined in Rule 144A under the Securities Act.
“Qualified
GIC”:
A guaranteed investment contract or surety bond providing for the investment
of
funds in the Capitalized Interest Account and insuring a minimum, fixed or
floating rate of return on investments of such funds, which contract or surety
bond shall:
be
an
obligation of an insurance company or other corporation whose long--term debt
is
rated by each Rating Agency in one of its two highest rating categories or,
if
such insurance company has no long--term debt, whose claims paying ability
is
rated by each Rating Agency in one of its two highest rating categories, and
whose short-term debt is rated by each Rating Agency in its highest rating
category;
(i) provide
that the Trustee may exercise all of the rights under such contract or surety
bond without the necessity of taking any action by any other Person;
(ii) provide
that if at any time the then current credit standing of the obligor under such
guaranteed investment contract is such that continued investment pursuant to
such contract of funds would result in a downgrading of any rating of the
Certificates or the NIM Notes or the Trustee shall terminate such contract
without penalty and be entitled to the return of all funds previously invested
thereunder, together with accrued interest thereon at the interest rate provided
under such contract to the date of delivery of such funds to the Trustee;
(iii) provide
that the Trustee’s interest therein shall be transferable to any successor
trustee hereunder; and
(iv) provide
that the funds reinvested thereunder and accrued interest thereon be returnable
to the Capitalized Interest Account not later than the Business Day prior to
any
Distribution 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, 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.
43
“Rating
Agency”:
Each
of S&P, Fitch and Xxxxx’x and any respective successors thereto. If Moody’s,
Fitch, S&P or their respective successors 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.
“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.
“Reconstitution
Agreement”:
The
reconstituted servicing agreement dated as of April 1, 2007 among the
Seller and the Servicer and acknowledged by the Trustee, reconstituting the
Servicing Agreement.
“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.
44
“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 Trustee and shall have an established place of business
in London. Until all of the LIBOR Certificates are paid in full, the Trustee
will at all times retain at least four Reference Banks for the purpose of
determining LIBOR with respect to each LIBOR Determination Date. The Trustee
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 Trustee should terminate its appointment as Reference Bank,
the
Trustee shall promptly appoint or cause to be appointed another Reference Bank
(after consultation with the Depositor). The Trustee 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
Certificate other than the Class C, Class P, Class ES and Class R
Certificates.
“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.
“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
Trustee, the Custodian or the 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.
45
“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
Servicer’s Remittance Report to the Trustee pursuant to the Servicing Agreement
providing information with respect to each Mortgage Loan which is provided
no
later than the 10th
calendar
day of each month and which shall contain such information as may be agreed
upon
by the Trustee and which shall be sufficient to enable the Trustee to prepare
the related Distribution Date Statement.
“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 Servicer in respect of an REO Property
pursuant to the Servicing Agreement.
“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 Agreement in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable
or
reimbursable to the Servicer pursuant to the applicable provisions of the
Servicing Agreement for unpaid 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.
46
“REO
Property”:
A
Mortgaged Property acquired by the Servicer on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in accordance with the applicable
provisions of the Servicing Agreement.
“Reportable
Event”:
As
defined in Section 3.19(c).
“Repurchase
Price”:
As
defined in the related Purchase Agreement.
“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 C Certificates and any Distribution Date, an amount equal
to the lesser of (i) the Net Monthly Excess Cashflow otherwise distributable
to
the Class C Certificates for such Distribution Date and (ii) the amount required
to bring the balance on deposit in the Basis Risk Reserve Fund to an amount
equal to the greater of (a) the Basis Risk Shortfall for such Distribution
Date
with respect to the LIBOR Certificates (after giving effect to distributions
of
amounts received pursuant to the Yield Maintenance Allocation Agreement) and
(b)
$1,000.
“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 R Certificates.
“Responsible
Officer”:
When
used with respect to the Trustee, any director, 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
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 Depositor 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 Depositor, 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 Depositor and
the
Seller following a negotiation in good faith to determine how to comply with
any
such new requirements.
47
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“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.
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any
one of the Class 1A-1A, Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates.
“Senior
Certificate Group”:
Either
(a) the Class 1A-1A Certificates with respect to Loan Group 1 or (b) the Class
2A-1A, Class 2A-1B and Class 2A-1C Certificates with respect to Loan Group
2.
“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
Principal Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the aggregate Class
Principal Balance of the Senior Certificates immediately prior to such
Distribution Date over (y) the lesser of (A) the product of (i) for each
Distribution Date prior to May 2013, 69.500% and thereafter 75.600% and (ii)
the
Aggregate Collateral Balance as of the last day of the related Due Period (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 (B) the Aggregate
Collateral Balance as of the last day of the related Due Period (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) minus
the
Overcollateralization Floor.
48
“Senior
Termination Date”:
For
each Senior Certificate Group, the Distribution Date on which the aggregate
of
the Class Principal Balances of the related Senior Certificates is reduced
to
zero.
“Servicer”:
GMACM,
as primary servicer 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, the preceding Business Day.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Trust Fund by the
Servicer or with respect to the related Mortgage Loans and any REO Property,
pursuant to the terms of the Servicing Agreement.
“Servicing
Advances”:
With
respect to the Servicer (including the Trustee in its capacity as successor
Servicer), all customary, reasonable and necessary “out of pocket” costs and
expenses (including reasonable attorneys’ fees and expenses) incurred by the
Servicer (including the Trustee in its capacity successor Servicer) in the
performance of its servicing obligations under the Servicing Agreement,
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 Agreement.
“Servicing
Agreement”:
The
Amended and Restated Master Interim Servicing Agreement dated as of January
1,
2006, between GCFP, as purchaser, and GMACM, as seller, as reconstituted by
the
Reconstitution Agreement, as the same may be amended from time to time, and
any
assignments and conveyances related to the Mortgage Loans.
“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 the Servicer and each Mortgage Loan and for any calendar month,
the
Subservicing Fee.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum rate of 0.3750%.
“Servicing
Function Participant”:
Any
Subservicer, Subcontractor of the Servicer, the Custodian and the Trustee,
respectively.
“Servicing
Officer”: Any
officer of the Servicer or any Subservicer involved in, or responsible for,
the
administration and servicing of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished to the Trustee,
the
Custodian and the Depositor on the Closing Date, as such list may from time
to
time be amended.
“Servicing
Rights”:
With
respect to any SRO Mortgage Loan, any and all of the following: (a) the right,
under the Servicing Agreement, to terminate the related SRO Servicer as servicer
of the Mortgage Loan, with or without cause, subject to Section 3.03 of this
Agreement; (b) the right, under the Servicing Agreement, to transfer the
Servicing Rights and/or all servicing obligations with respect to such Mortgage
Loan, subject to Section 3.03 of this Agreement; (c) the right to receive the
Servicing Fee, less an amount to be retained by the related SRO Servicer as
its
servicing compensation as agreed to by the Servicing Rights Owner and the
related SRO Servicer, subject to Section 3.03 of this Agreement, and (d) all
powers and privileges incident to any of the foregoing.
49
“Servicing
Rights Owner”:
With
respect to the SRO Mortgage Loans, GCFP or any successor or assign of
GCFP.
“Sponsor”:
Greenwich Capital Financial Products, Inc., in its capacity as sponsor under
this Agreement.
“SRO
Mortgage Loans”:
Any
Mortgage Loans for which GMACM is the SRO Servicer and GCFP is the Servicing
Rights Owner, and which are identified in the Mortgage Loan
Schedule.
“SRO
Servicer”:
GMACM
in its capacity as Servicer of SRO Mortgage Loans.
“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 May 2007,
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 Servicer 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; provided
that
such
Stated Principal Balance shall be increased by the amount of any Deferred
Interest added to the outstanding Principal Balance of such Mortgage Loan
pursuant to the terms of the related Mortgage Note. 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.
50
“Stepdown
Date”:
The
earlier to occur of (i) the first Distribution Date on which the aggregate
Class
Principal Balance of the Senior Certificates has been reduced to zero and (ii)
the later to occur of (x) the Distribution Date occurring in May 2010 and (y)
the first Distribution Date on which the Credit Enhancement Percentage of the
Senior Certificates (calculated for this purpose only after taking into account
distributions of principal on the Mortgage Loans and before distribution of
the
Principal Distribution Amount to the holders of the Certificates then entitled
to distributions of principal on such Distribution Date) is greater than or
equal to the target Credit Enhancement Percentage of the Senior
Certificates.
“Strike
Rate”:
With
respect to any Distribution Date and the Yield Maintenance Agreement, the strike
rate for such date set forth on Schedule 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 the Servicer (or a Subservicer of the Servicer),
the Trustee and the Custodian.
“Subordinate
Adjusted Cap Rate”:
With
respect to any Distribution Date and any Class of the Subordinate Certificates,
the weighted average of the Group 1 Adjusted Cap Rate and the Group 2 Adjusted
Cap Rate for that Distribution Date, weighted in each case based on the
applicable Subordinate Component for the related Loan Group.
“Subordinate
Certificate”:
Any of
the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-7,
Class B-8 or Class B-9 Certificates.
“Subordinate
Class Expense Share”:
For
each Class of Subordinate Certificates and each Accrual Period, the Subordinate
Class Expense Share shall be allocated in reverse order of their respective
numerical Class designations (beginning with the Class of Subordinate
Certificates with the highest numerical Class designation) and will be an amount
equal to (i) the sum of, without duplication, (a) the amounts paid to the
Trustee from the Trust Fund during such Accrual Period pursuant to Section
8.05
hereof to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Loan Rate of any Mortgage
Loan
and (b) amounts described in clause (y) of the definition of Available Funds
herein to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Loan Rate of any Mortgage
Loan
minus
(ii)
amounts taken into account under clause (i) of this definition in determining
the Subordinate Class Expense Share of any Class of Subordinate Certificates
having a higher numeric designation. In no event, however, shall the Subordinate
Class Expense Share for any Class of Subordinate Certificates and any Accrual
Period exceed the Monthly Interest Distributable Amount for such Class of
Certificates computed without regard to the Subordinate Class Expense
Share.
“Subordinate
Component”:
With
respect to each Loan Group and any Distribution Date, the excess of the sum
of
the related Pool Balance for such Distribution Date over the aggregate Class
Principal Balance of the related Senior Certificate Group immediately preceding
such Distribution Date. The designation “1” and “2” appearing after the
corresponding Loan Group designation is used to indicate a Subordinate Component
allocable to Loan Group 1 and Loan Group 2, respectively.
51
“Subsequent
Cut-off Date”:
With
respect to each Subsequent Mortgage Loan, the date specified as the cut-off
date
in the related Subsequent Transfer Agreement for such Subsequent Mortgage
Loan.
“Subsequent
Mortgage Loan”:
Any
Mortgage Loan, other than an Initial Mortgage Loan, conveyed to the Trust Fund
pursuant to Section 2.01 hereof and a Subsequent Transfer Agreement, which
Mortgage Loan shall be listed on the revised Mortgage Loan Schedule delivered
pursuant to this Agreement and on Schedule A to such Subsequent Transfer
Agreement. When used with respect to a single Subsequent Transfer Date,
Subsequent Mortgage Loan shall mean a Subsequent Mortgage Loan conveyed to
the
Trust on that Subsequent Transfer Date.
“Subsequent
Transfer Agreement”:
A
Subsequent Transfer Agreement substantially in the form of Exhibit T hereto,
executed and delivered by and among the Depositor, the Seller and the Trustee
and acknowledged by the Servicer, as provided in Section 2.01(b)
hereof.
“Subsequent
Transfer Date”:
With
respect to any Subsequent Transfer Agreement, the date the related Subsequent
Mortgage Loans are transferred to the Trust pursuant to the related Subsequent
Transfer Agreement.
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of the Servicer, the Trustee
or
the Custodian, and is responsible for the performance (whether directly or
through subservicers or Subcontractors) of servicing functions required to
be
performed under this Agreement, any related Servicing Agreement or any
subservicing agreement that are identified in Item 1122(d) of Regulation
AB.
“Subservicing
Fee”:
With
respect to any Mortgage Loan, an amount equal to (a) one-twelfth the product
of
(i) the Subservicing Fee Rate and (ii) the Stated Principal Balance of such
Mortgage Loan as of the first day of the related month.
“Subservicing
Fee Rate”:
With
respect to any Mortgage Loan serviced by GMACM on behalf of the Trust Fund,
the
“GMACM Subservicing Fee Rate” as defined in the GMACM Reconstituted Servicing
Agreement reconstituting the GMACM Sub-Servicing Agreement.
“Substitution
Adjustment”:
As
defined in Section 2.03(d) hereof.
“Supported
Originator”:
Each
party listed as an “Originator” on Exhibit Y hereto.
“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.
52
“Telerate
Page 3750”:
The
display currently so designated as “Page 3750” on the Bridge Telerate Service
(or such other page selected by the Trustee as may replace Page 3750 on that
service for the purpose of displaying daily comparable rates on
prices).
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Terminator”:
As
defined in Section 10.01(a) hereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a 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.
“Trigger
Event”:
With
respect to any Distribution Date on or after the Stepdown Date, occurs
when:
(a) the
sum
of the percentages obtained by dividing (x) the aggregate Stated Principal
Balance of Mortgage Loans delinquent 60 days or more, that are in foreclosure
or
that are REO Properties by (y) the aggregate Stated Principal Balance of the
Mortgage Loans, in each case, as of the last day of the previous three calendar
months divided
by
3,
exceeds (i) prior to the Distribution Date in May 2013, 22.95% of the current
Credit Enhancement Percentage of the Senior Certificates or (ii) on or after
the
Distribution Date in May 2013, 28.60% of the current Credit Enhancement
Percentage of the Senior Certificates; or
(b) the
aggregate amount of Realized Losses incurred since the Cut-off Date through
the
last day of the related Due Period (reduced by the aggregate amount of
Recoveries received since the Cut-off Date through the last day of the related
Due Period) divided
by
the sum
of (a) the aggregate Stated Principal Balance of the Initial Mortgage Loans
as of the Cut-off Date and (b) the Prefunded Amount, exceeds the applicable
percentage set forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
May
2009 - April 2010
|
0.25%
for the first month plus an additional 1/12th of 0.35% for each month
thereafter
|
|
May
2010 - April 2011
|
0.60%
for the first month plus an additional 1/12th of 0.55% for each month
thereafter
|
|
May
2011 - April 2012
|
1.05%
for the first month plus an additional 1/12th of 0.45% for each month
thereafter
|
|
May
2012 - April 2013
|
1.50%
for the first month plus an additional 1/12th of 0.55% or each month
thereafter
|
|
May
2013 - April 2014
|
2.05%
for the first month plus an additional 1/12th of 0.20% for each month
thereafter
|
53
|
May
2014 and thereafter
|
2.25%
|
“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 the Servicing Agreement, (vii) the Basis
Risk Reserve Fund, the Prefunding Account, the Capitalized Interest Account,
the
Final Maturity Reserve Fund and the Yield Maintenance Account, (viii) the
distributions made by the Yield Maintenance Administrator to the Trustee
pursuant to the Yield Maintenance Allocation Agreement 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), (2) all income and gain realized
from Permitted Investments of funds on deposit in the Distribution Account
and
(3) all Servicing Rights with respect to the SRO Mortgage Loans.
“Trustee”:
Xxxxx
Fargo Bank, N.A., not in its individual capacity but solely as trustee, a
national banking association, its successors in interest and assigns, or any
successor trustee appointed as herein provided.
“Trustee
Certification”:
A
certification of the Trustee substantially in the form of Exhibit
P.
“Trustee
Fee”:
The
trustee shall receive as compensation for its services (1) a monthly fee paid
out of interest collections received on each mortgage loan calculated as 0.0025%
per annum of the outstanding principal balance of each mortgage loan as of
the
first day of the related due period and (2) all investment earnings, if any,
on
amounts on deposit in the Distribution Account.
“Undercollateralized
Group”:
With
respect to any Distribution Date and any Loan Group as to which the aggregate
Class Principal Balance of the related Classes of Senior Certificates, after
giving effect to distributions pursuant to Section 5.01(a) on such date, is
greater than the Loan Group Balance of the related Loan Group for such
Distribution Date, such Classes of Senior Certificates shall constitute an
Undercollateralized Group.
“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.
54
“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.
“Unpaid
Basis Risk Shortfall”:
With
respect to each Class of Offered Certificates and any Distribution Date, the
aggregate of all Basis Risk Shortfalls for such Class remaining unpaid from
all
previous Distribution Dates, together with interest thereon at the applicable
Pass-Through Rate, computed without regard to the applicable Net WAC Cap, but
limited to a rate no greater than the Net Maximum Rate Cap.
“Unpaid
Interest Shortfall Amount”:
With
respect to any Distribution Date and any Class of LIBOR Certificates, the sum
of
(i) the excess, if any, of (a) the aggregate of the Monthly Interest
Distributable Amounts for such Class for all prior Distribution Dates over
(b)
the sum of all amounts distributed as interest in respect of such Class from
the
Interest Remittance Amount pursuant to Section 5.01(a)(i) and from the Yield
Maintenance Account pursuant to Section 5.01(h)(v) or (vi), plus (ii) interest
on the amount described in clause (i) at the applicable Pass-Through Rate for
the related Accrual Period, plus (iii) any interest accrued pursuant to clause
(ii) on prior Distribution Dates that remains unpaid.
“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 Mae 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. 99% of the voting rights shall be allocated among the Classes
of Regular 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 and 1% of the voting rights shall
be allocated to the Class 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 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 of
each Certificate of such Class and the denominator of which is the Class
Principal Balance of such Class; and provided,
further,
however,
that
any Certificate registered in the name of the Trustee or any of its affiliates
shall not be included in the calculation of Voting Rights. The Class C, Class
ES
and Class P Certificates shall have no voting rights.
55
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“Yield
Maintenance Account”:
The
account established and maintained by the Trustee pursuant to Section 5.12,
which shall be entitled “Yield Maintenance Account, Xxxxx Fargo Bank, N.A., in
trust for the registered Holders of HarborView Mortgage Loan Trust Mortgage
Loan
Pass-Through Certificates, Series 2007-3” and which must be an Eligible
Account.
“Yield
Maintenance Administrator”:
Xxxxx
Fargo Bank, N.A. or its successor in interest, or any successor yield
maintenance administrator appointed as herein provided.
“Yield
Maintenance Agreement”:
The
interest rate cap agreement for the benefit of the LIBOR Certificates by and
between the Yield Maintenance Provider and the Yield Maintenance Administrator,
on behalf of the Yield Maintenance Trust, including the ISDA Master Agreement
between the Yield Maintenance Provider and the Yield Maintenance Administrator,
the schedule thereto and the related confirmation (Ref. No. IRG16269413.2A/2B)
dated as of April 27, 2007 attached as Exhibit W hereto. The Yield Maintenance
Agreement shall be an asset of the Yield Maintenance Trust and not of the Trust
Fund or any REMIC.
“Yield
Maintenance Allocation Agreement”:
The
allocation agreement dated April 27, 2007, among the Yield Maintenance
Administrator, the Trustee and the Sponsor, a copy of which is attached hereto
as Exhibit V.
“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, (iii) 250 and (iv) 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”:
With
respect to 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 Payment Amount”:
With
respect to each Distribution Date, an amount equal to the sum of the amounts
described in Sections 5.01(h)(i) through (vii).
“Yield
Maintenance Provider”:
The
Royal Bank of Scotland plc, its successors in interest and assigns or any
successor Yield Maintenance Provider.
56
“Yield
Maintenance Trust”:
The
trust created pursuant to the Yield Maintenance Allocation Agreement and
designated as the “Yield Maintenance Trust” the assets of which consist
primarily of the Yield Maintenance Trust Account, the Yield Maintenance
Agreement and the Collateral Account, but which is not an asset of the Trust
Fund or any REMIC.
“Yield
Maintenance Trust Account”:
The
account, relating to the Yield Maintenance Agreement, established by the Trustee
pursuant to Section 5.11 and maintained by the Yield Maintenance Administrator
pursuant to the Yield Maintenance Allocation Agreement and which must be an
Eligible Account. The Yield Maintenance Trust Account is an asset of the Yield
Maintenance Trust and not of the Trust Fund or any REMIC.
|
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.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
|
SECTION
2.01.
|
Conveyance
of Mortgage Loans.
|
(a) 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 to 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; (vi) any such amounts as may be deposited into and held by the
Trustee in the Prefunding Account and the Capitalized Interest Account and
(vii)
all other assets included or to be included in the Trust Fund; provided,
that
such assignment shall not include any Servicing Rights with respect to SRO
Mortgage Loans. Such assignment includes all interest and principal due to
the
Depositor after the Cut-off Date with respect to the Mortgage Loans. In exchange
for such transfer and assignment, the Depositor shall receive the
Certificates.
It
is
acknowledged and agreed that the Trustee hereunder shall also serve as the
Yield
Maintenance Administrator under the Yield Maintenance Allocation Agreement
and
the Yield Maintenance Agreement. The Depositor hereby directs the Yield
Maintenance Administrator to execute, deliver and perform its obligations under
the Yield Maintenance Allocation Agreement and the Yield Maintenance Agreement,
not in its individual capacity, but solely as Yield Maintenance Administrator
on
behalf of the Yield Maintenance Trust. Every provision of this Agreement
relating to the conduct or affecting the liability of or affording protection
or
indemnification to the Trustee shall apply to the Yield Maintenance
Administrator’s execution and performance of its duties and obligations under
the Yield Maintenance Allocation Agreement and the Yield Maintenance
Agreement.
57
The
Depositor hereby directs the Trustee to execute, not in its individual capacity,
but solely as Trustee on behalf of the Trust Fund, the Yield Maintenance
Allocation Agreement and perform its duties and obligations
thereunder.
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.
Notwithstanding
anything provided herein to the contrary, each of the parties hereto agrees
and
acknowledges that, notwithstanding the transfer, conveyance and assignment
of
the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement,
GCFP remains the sole and exclusive owner of the related Servicing Rights with
respect to the SRO Mortgage Loans.
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
Agreement 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 the 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.
In
connection with such transfer and assignment, (i) the Depositor directs the
Trustee to appoint Deutsche Bank National Trust Company as Custodian, and (ii)
the Seller, on behalf of the Depositor, does hereby deliver on the Closing
Date,
unless otherwise specified in this Section 2.01 or the Custodial Agreement,
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:
58
(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 Xxxxx Fargo
Bank, N.A., as Trustee for HarborView Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-3, 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;
(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, together with an Officer’s Certificate of the
Seller certifying that the copy of such Mortgage delivered to the Trustee (or
its Custodian) is a true copy 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;
(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 “Xxxxx Fargo Bank, N.A., as Trustee for HarborView Mortgage Loan
Trust Mortgage Loan Pass-Through Certificates, Series 2007-3, 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 and any
NIMS Insurer that such original intervening Assignment is not required to
enforce the Trustee’s interest in the Mortgage Loans;
59
|
(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 Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee), 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 (or any Subsequent Transfer 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 2007-3.
Notwithstanding anything herein to the contrary, the Trustee is 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 Servicer to take), at the
expense of the Seller (with the cooperation of the Depositor and the Trustee)
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 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 Servicer to properly record), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee, or the Custodian on
behalf of the Trustee), 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.
60
The
Trustee (for the Custodian) agrees to execute and deliver to the Depositor
and
to the Trustee if delivered by the Custodian 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, 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, 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
(a)
Initial Mortgage Loans (if any) that have been prepaid in full after the Initial
Cut-off Date and prior to the Closing Date or (b) Subsequent Mortgage Loans
(if
any) that have been prepaid in full after the applicable Subsequent Cut-off
Date
and prior to the applicable Transfer Date, in lieu of the Seller delivering
the
above documents, the Servicer shall deliver to any NIMS Insurer and 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 (or to the Custodian on behalf
of the Trustee) on behalf of the Trust Fund shall be held by the 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, concurrently with the execution and delivery hereof, does hereby
transfer, assign, sets 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 each Subsequent Mortgage Loan included on the Mortgage
Loan
Schedule, including the related Cut-off Date Principal Balance, all interest
due
thereon after the Subsequent Cut-off Date and all collections in respect of
interest and principal due after the Subsequent 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 Subsequent 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 Subsequent
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 after the Subsequent Cut-off
Date with respect to the Subsequent Mortgage Loans.
61
Upon
three Business Days’ prior written notice to the Trustee, the Servicer and the
Rating Agencies, on any Business Day designated by the Depositor during the
Prefunding Period, the Depositor, the Seller, the Trustee and the Servicer
shall
complete, execute and deliver a Subsequent Transfer Agreement so long as no
Rating Agency has provided notice that the execution and delivery of such
Subsequent Transfer Agreement will result in a reduction or withdrawal of the
ratings assigned to the Certificates on the Closing Date.
The
transfer of Subsequent Mortgage Loans and the other property and rights relating
to them on a Subsequent Transfer Date is subject to the satisfaction of each
of
the following conditions:
|
(i)
|
each
Subsequent Mortgage Loan conveyed on such Subsequent Transfer Date
satisfies the representations and warranties applicable to it under
this
Agreement and under the Reconstitution Agreement as of the applicable
Subsequent Transfer Date; provided,
however,
that with respect to a breach of a representation and warranty with
respect to a Subsequent Mortgage Loan, the obligation under Section
2.03
of this Agreement of the Seller or Originator, as applicable, to
cure,
repurchase or replace such Subsequent Mortgage Loan shall constitute
the
sole remedy against the Seller or Originator, as applicable, respecting
such breach available to Certificateholders, the Depositor or the
Trustee;
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|
(ii)
|
the
Trustee and the Rating Agencies are provided with an Opinion of Counsel
or
Opinions of Counsel, at the expense of the Depositor, with respect
to the
qualification of each REMIC created pursuant to this Agreement as
a REMIC,
to be delivered as provided pursuant to this Section
2.01(b);
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(iii)
|
the
Rating Agencies and the Trustee are provided with an Opinion of Counsel
or
Opinions of Counsel, at the expense of the Depositor, with respect
to the
characterization of the transfer of the Subsequent Mortgage Loans
conveyed
on such Subsequent Transfer Date as a sale, to be delivered as provided
pursuant to this Section 2.01(b);
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|
(iv)
|
the
execution and delivery of such Subsequent Transfer Agreement or conveyance
of the related Subsequent Mortgage Loans does not result in a reduction
or
withdrawal of any ratings assigned to the Certificates on the Closing
Date
by the Rating Agencies;
|
|
(v)
|
each
Subsequent Mortgage Loan may not be 30 or more days contractually
delinquent as of its Subsequent Transfer
Date;
|
|
(vi)
|
each
Subsequent Mortgage Loan may not have a final maturity date later
than May
2047;
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62
|
(vii)
|
the
remaining term to stated maturity of each Subsequent Mortgage Loan
will
not exceed 40 years;
|
|
(viii)
|
each
Subsequent Mortgage Loan will have an LTV ratio not greater than
100.0%;
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|
(ix)
|
each
Subsequent Mortgage Loan will have a Stated Principal Balance not
greater
than $1,600,000;
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|
(x)
|
each
Subsequent Mortgage Loan will have a first payment date no later
than June
2007;
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|
(xi)
|
each
Subsequent Mortgage Loan will be a fixed rate mortgage loan with
an
initial interest-only term not exceeding 5 years (solely in the case
of
Loan Group 2), or an adjustable rate mortgage loan, which will have
a Loan
Rate determined by the MTA index, the COFI Index or the 1-month LIBOR
index (in the case of either Loan
Group);
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|
(xii)
|
each
adjustable rate Subsequent Mortgage Loan will have a margin equal
to, or
in excess of, 1.475% per annum;
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|
(xiii)
|
no
Subsequent Mortgage Loan will be subject to the Homeownership and
Equity
Protection Act of 1994 or any comparable state or local law;
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|
(xiv)
|
each
Subsequent Mortgage Loan will be a valid, existing and enforceable
first
lien on the Mortgaged Property;
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|
(xv)
|
the
aggregate pool of Subsequent Mortgage Loans is acceptable to the
Rating
Agencies by a prior written
communication;
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(xvi)
|
each
Subsequent Mortgage Loan will have been originated generally in accordance
with underwriting criteria substantially similar to the underwriting
guidelines used by each Originator in the origination of the Initial
Mortgage Loans;
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|
(xvii)
|
following
the purchase of such Subsequent Mortgage Loans by the Trust, the
Mortgage
Loans, including the Subsequent Mortgage Loans, will have the following
characteristics as of their respective Subsequent Cut-off
Dates:
|
with
respect to Loan Group 1:
|
(1)
|
a
weighted average margin of not less than 3.350% per
annum;
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|
(2)
|
a
weighted average remaining term to stated maturity of no more than
410
months;
|
|
(3)
|
a
weighted average original LTV ratio of not more than
79.50%;
|
63
|
(4)
|
a
weighted average credit score of not less than 708;
and
|
|
(5)
|
no
more than 33.00% of the Group 1 Mortgage Loans, by Cut-off Date Collateral
Balance, will relate to investor owned
properties.
|
with
respect to Loan Group 2:
|
(1)
|
a
weighted average margin of not less than 3.250% per
annum;
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|
(2)
|
a
weighted average remaining term to stated maturity of no more than
410
months;
|
|
(3)
|
a
weighted average original LTV ratio of not more than
79.00%;
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|
(4)
|
a
weighted average credit score of not less than 710;
and
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|
(5)
|
no
more than 11.00% of the Group 2 Mortgage Loans, by Cut-off Date Collateral
Balance, will relate to investor owned
properties.
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(xviii)
|
neither
the Seller nor the Depositor shall be insolvent or shall be rendered
insolvent as a result of such
transfer;
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(xix)
|
no
Event of Default shall have occurred
hereunder;
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|
(xx)
|
the
Depositor shall have delivered to the Trustee an Officer’s Certificate
confirming the satisfaction of each of these conditions precedent;
and
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|
(xxi)
|
each
Mortgage Loan shall constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code.
|
Notwithstanding
the foregoing, the aggregate characteristics of the Subsequent Mortgage Loans
at
the end of the Prefunding Period shall be substantially the same as the
aggregate characteristics of the Initial Mortgage Loans as of the Initial
Cut-off Date.
Upon
(1)
delivery to the Trustee by the Depositor of the Opinions of Counsel referred
to
in this Section 2.01(b), (2) delivery to the Trustee by the Depositor of a
revised Mortgage Loan Schedule reflecting the Subsequent Mortgage Loans conveyed
on such Subsequent Transfer Date and the related Subsequent Mortgage Loans
and
(3) delivery to the Trustee by the Depositor of an Officer’s Certificate
confirming the satisfaction of each of the conditions precedent set forth above
in this Section 2.01(b), the Trustee shall remit to the Depositor the Aggregate
Subsequent Transfer Amount related to the Subsequent Mortgage Loans transferred
by the Depositor on such Subsequent Transfer Date from funds in the Prefunding
Account.
The
Trustee shall not be required to investigate or otherwise verify compliance
with
the conditions set forth in the preceding paragraph, except for its own receipt
of documents specified above, and shall be entitled to rely on the required
Officer’s Certificate.
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.
64
|
SECTION
2.02.
|
Acceptance
by Trustee.
|
The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
Custodian on its behalf of the Mortgage Files pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule, subject to review thereof by the Custodian
on behalf of the Trustee and declares that it holds or will hold all 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 behalf of the Trustee) shall, for the benefit
of
the Certificateholders, review each Mortgage File delivered to it and to certify
and deliver to the Depositor, the Seller, any NIMS Insurer 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
to 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 (xv) 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
and
the Custodian on its behalf are 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 (or the Custodian on behalf
of
the Trustee) shall deliver to the Depositor, any NIMS Insurer 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 as its designated agent) 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.
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.
65
The
Trustee (or the Custodian on behalf of the Trustee) shall execute and deliver
to
the Depositor on or prior to each Subsequent Transfer Date an acknowledgment
of
receipt of the original Mortgage Note (with any exceptions noted), substantially
in the form attached as Exhibit G-1 hereto.
The
Trustee (or the Custodian on behalf of the Trustee) shall, for the benefit
of
the Certificateholders, review each Mortgage File delivered to it for the
Subsequent Mortgage Loans and to certify and deliver to the Depositor, the
Seller and the Rating Agency an interim certification in substantially the
form
attached hereto as Exhibit G-2, within 45 days after each Subsequent Transfer
Date that, as to each Subsequent Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Subsequent Mortgage Loan paid in full or any Subsequent
Mortgage Loan specifically identified in the exception report annexed thereto
as
not being covered by such certification), (i) all documents required to be
delivered to 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 Subsequent 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 and the Custodian on its behalf are 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 90 days after each Subsequent Transfer Date, the Trustee or the Custodian
on behalf of the Trustee shall deliver to the Depositor and the Seller a final
certification in the form annexed hereto as Exhibit G-3 (or a substantially
similar form) evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
If,
in
the course of such review of the Mortgage Files relating to the Subsequent
Mortgage Loans, the Custodian finds any document constituting a part of a
Mortgage File which does not meet the requirements of Section 2.01(b), the
Trustee shall cause the Custodian to list such as an exception in the Final
Certification; provided,
however,
that
the Trustee shall not make any determination as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party
so endorsing, as noteholder or assignee thereof, in and to that Mortgage Note
or
(ii) any assignment is in recordable form or is sufficient to effect the
assignment of and transfer to the assignee thereof under the mortgage to which
the assignment relates. The Seller or Originator, as applicable, shall cure
any
such defect or repurchase or substitute for any such Mortgage Loan in accordance
with this Section 2.02.
66
|
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 related Originator 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 or any NIMS Insurer on behalf of
the
Certificateholders.
(b) Upon
discovery or receipt of written notice that a document does not comply with
the
requirements of Section 2.01 hereof, 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 (or the Custodian on behalf of 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.
67
(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,
upon receipt of written certification from the Seller or the related Originator
of the related deposit in the Distribution Account, shall cause the Custodian
to
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 and the Custodian shall have no further
responsibility with regard to such Mortgage File (it being understood that
the
Trustee and the Custodian 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(g)
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 an Originator of a representation and warranty
made by such Originator in the Servicing Agreement, then 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.
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).
68
(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 Servicer to take), at the
expense of the Seller (with the cooperation of the Depositor and the Trustee),
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. In order to facilitate the discovery 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 Depositor shall have the right
to request from the related Originator on behalf of the Trust Fund, a copy
of
the Mortgage File (including any documents related thereto, such as payment
histories, collection screens and payoff amounts), or if any portion of copy
of
such Mortgage File is being held by the Servicer or the Custodian, from such
Servicer or such Custodian, as applicable, and the related Originator, Servicer
or Custodian are hereby authorized to deliver such file to the
Depositor.
(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. With respect
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 Custodian, on behalf of 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 Custodian, on behalf of the Trustee, 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 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 Custodian, on behalf of the Trustee, shall deliver to the
Seller 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. 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.
69
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 Trustee 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 NIMS
Insurer and 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.
(h) Upon
discovery by the Seller, 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(g), 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.
(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.
70
|
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
Initial Mortgage Loans and as of the applicable Subsequent Transfer Date with
respect to any Subsequent 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 C.F.R. 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;
(iii) With
respect to each representation and warranty with respect to any Mortgage Loan
made by the related Originator in the related 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; and
(iv) Each
Group 1 Mortgage Loan has an original principal balance that conforms to Xxxxxxx
Mac guidelines in effect as of the Closing Date.
With
respect to the representations and warranties 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 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.
71
It
is
understood and agreed that the representations and warranties 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 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(a)
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, any NIMS Insurer or to the Trustee
on their behalf respecting a breach of the representations and warranties
incorporated in this Section 2.04.
|
SECTION
2.05.
|
Back-up
of Originator Representations and
Warranties.
|
Within
120 days following the earlier of discovery by the Seller or receipt of notice
by the Seller of the occurrence of both (i) the breach of any representation
or
warranty of a Supported Originator under Section 7.02 of 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
and for which the related Supported Originator has failed to cure such breach
in
accordance with the terms of the related Purchase Agreement and (ii)(a) the
Originator ceasing to be an operating company or (b) receipt by the Seller
of an
officers’ certificate of the related Supported Originator certifying to the fact
that the Originator is financially unable to cure such breach in accordance
with
the terms of the related Purchase Agreement, the Seller shall take the actions
described in Section 2.03, as applicable, in respect of such Mortgage
Loan.
|
SECTION
2.06.
|
Representations
and Warranties of the
Depositor.
|
The
Depositor represents and warrants to the Trust Fund, any NIMS Insurer and the
Trustee on behalf of the Certificateholders 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);
72
(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;
(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
73
(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.
|
SECTION
2.07.
|
Issuance
of Certificates.
|
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it or to the Custodian 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 Trustee, 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.
74
(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.
75
(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,
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 and the Depositor a complete list of each party to the
HarborView Mortgage Loan Trust 2007-3 transaction.
ARTICLE
III
ADMINISTRATION
OF THE MORTGAGE LOANS
|
SECTION
3.01.
|
Servicing
of the Mortgage Loans.
|
The
Servicer will service the Mortgage Loans pursuant to the terms of the Servicing
Agreement. The Depositor hereby directs the Trustee to execute the
Reconstitution Agreement.
|
SECTION
3.02.
|
REMIC-Related
Covenants.
|
For
as
long as each REMIC created hereunder shall exist, the Trustee shall act in
accordance herewith to treat each such REMIC as a REMIC, and the Trustee shall
comply with any directions of the Depositor or the Servicer to assure such
continuing treatment. In particular, the Trustee 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 the
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 the Servicing Agreement,
as applicable, accept any contribution to any REMIC after the Startup Day
without receipt of a REMIC Opinion.
76
|
SECTION
3.03.
|
Release
of Mortgage Files.
|
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the 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 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
Servicing Account maintained by the Servicer pursuant to Section 4.01 or by
the
Servicer pursuant to the 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 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 Servicer,
the
Trustee and the Custodian shall have no further responsibility with regard
to
such Mortgage File. Upon any such payment in full, the 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 Servicing Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the Servicing Agreement, the Trustee shall execute such
documents as shall be prepared and furnished to the Trustee by the 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 the 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. Such trust receipt
shall
obligate the Servicer to return the Mortgage File to the Trustee (or the
Custodian on behalf of the Trustee) when the need therefor by the 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.
77
|
SECTION
3.04.
|
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 2008,
the Trustee and the 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 Trustee
and
the Depositor, a report on such party’s 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 3.07(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; provided,
however,
that a
Subcontractor shall only be required to furnish such report if so required
under
the terms of the Servicing Agreement.
(ii) No
later
than the end of each fiscal year for the Trust Fund for which a Form 10-K is
required to be filed, the Custodian shall forward to the Trustee 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. When the Custodian
and any Servicing Function Participant engaged by it submit their assessments
to
the Trustee and Depositor, such parties will also at such time include the
assessment (and attestation pursuant to subsection (b) of this Section 3.04)
of
each Servicing Function Participant engaged by it.
(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
Trustee, the 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 Trustee 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 the
Servicing Agreement in respect of the Servicer and notify the Depositor of
any
exceptions.
(iv) The
Trustee shall include all annual reports on assessment of compliance received
by
it from the Servicer (or the Subservicer on its behalf) with its own assessment
of compliance to be submitted to the Depositor pursuant to this
Section.
(v) In
the
event the Trustee, the Servicer, the 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 3.04(a) or to such
other applicable agreement with respect to the period of time it was subject
to
this Agreement or any applicable subservicing agreement, notwithstanding any
such termination, assignment or resignation.
78
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2008,
the Trustee and the 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 Trustee, the Custodian 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 Trustee
and
the Depositor, to the effect that (i) it has obtained a report on assessment
of
compliance with the Relevant Servicing Criteria 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.
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Trustee and the Depositor shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.04 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Trustee shall include each such attestation furnished to it by the Servicer
with
its own attestation to be submitted to the Depositor pursuant to this
Section.
(iv) In
the
event the Trustee, the Custodian, the 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 3.04(b) with respect to the period of
time
it was subject to this Agreement or any applicable subservicing agreement,
notwithstanding any such termination, assignment or resignation.
(v) The
Trustee’s and the Custodian’s obligation to provide assessments of compliance
and attestations under this Section 3.04 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 Trustee shall be obligated to provide a copy of such reports, by March
31 of
each year, to the Depositor.
79
(c) The
Trustee’s obligation to provide assessments of compliance and attestations under
this Section 3.04 shall terminate when the Trust Fund is no longer required
to
file reports pursuant to Section 15(d) of the Exchange Act.
|
SECTION
3.05.
|
Enforcement
of Regulation AB Deliverables.
|
If
the
Servicer or any Servicing Function Participant engaged by it fails to deliver
any certifications, assessments, attestations or statements of compliance to
the
Trustee within the time specified in the Servicing Agreement, the Trustee shall
notify the Servicer or any such Servicing Function Participant in writing of
such failure, with a copy of such notice to be delivered to the Seller and
the
Depositor. If at the end of the applicable cure period the Servicer or any
Servicing Function Participant has failed to deliver any of the required
certifications, assessments, attestations or statements of compliance, the
Trustee shall notify the Seller and the Depositor of such failure to deliver
the
required certifications, assessments, attestations or statements of compliance
pursuant to the Servicing Agreement.
|
SECTION
3.06.
|
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 Trustee and the 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”) in the form
of Exhibit M-1 hereto (or, in the case of the Trustee, the form attached hereto
as Exhibit M-2) 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 Depositor shall serve as the
Certifying Person on behalf of the Trust Fund. Such officer of the Certifying
Person can be contacted 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 3.06 with
respect to the period of time it was subject to this Agreement or any applicable
subservicing agreement, as the case may be.
|
SECTION
3.07.
|
Reports
Filed with Securities and Exchange
Commission.
|
The
Trustee shall reasonably cooperate with the Depositor in connection with the
Trust Fund’s satisfying the reporting requirements under the Exchange
Act.
(a) Reports
Filed on Form 10-D.
80
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Trustee 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 Trustee shall file each Form 10-D with a copy of the
related Distribution Date Statement. 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 responsible parties
set forth on Exhibit R to the Trustee and Depositor and directed and approved
by
the Depositor pursuant to the following paragraph and the Trustee 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.
(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 2007-3 transaction
shall be required to provide to the Trustee, 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 Trustee 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 Trustee 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 Trustee shall, no later than 10 calendar days
after
the Distribution Date, forward electronically a copy of the Form 10-D to the
Depositor and XxXxx Xxxxxx LLP. 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), (i) the Depositor shall notify the Trustee
in
writing of any changes to or approval of such Form 10-D and (ii) an officer
of
the Depositor shall execute the Form 10-D and return an electronic or fax copy
of such executed Form 10-D (with an original executed hard copy to follow by
overnight mail). Upon receipt of the executed Form 10-D and in the absence
of
receipt of any written changes or approval, the Trustee shall be entitled to
assume that such Form 10-D is in final form the Trustee may proceed with the
filing of 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 Trustee will follow the procedures
set
forth in subsection (d)(ii) of this Section 3.07. Promptly (but no later than
1
Business Day) after filing with the Commission, the Trustee will make available
on its internet website a final executed copy of each Form 10-D filed by the
Trustee. Each party to this Agreement acknowledges that the performance by
the
Depositor and the Trustee of their respective duties under this Section 3.07(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 3.07(a). The Trustee shall have
no liability for any loss, expense, damage, claim arising out of or with respect
to any failure to properly prepare and/or timely file such Form 10-D, where
such
failure results from the Trustee’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, and for any erroneous, inaccurate or
incomplete information or certification provided to the Trustee, not resulting
from its own negligence, bad faith or willful misconduct.
81
(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 Trustee 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 Trustee 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 Trustee shall be
entitled to rely on such representations in preparing 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 2008, the Trustee 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 Trustee within the applicable time frames
set forth in this Agreement and the Servicing Agreement, (i) an annual
compliance statement for the Servicer and any Servicing Function Participant
engaged by such parties (with each of the Trustee and the Custodian, a
“Reporting Servicer”) as described under Section 3.05 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 3.04(a), and
(B) if any Reporting Servicer’s report on assessment of compliance with
servicing criteria described under Section 3.04(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 3.04(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 3.04(b), and (B) if any registered public accounting firm
attestation report described under Section 3.04(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 3.06; provided,
however,
that
the Trustee and the Depositor, at their 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 responsible parties set forth on Exhibit O to the Depositor
and Trustee and directed and approved by the Depositor pursuant to the following
paragraph and the Trustee 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.
82
(ii) As
set
forth on Exhibit R 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 2008, (i) the parties to the HarborView
Mortgage Loan Trust 2007-3 transaction shall be required to provide to the
Trustee 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 Trustee 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 Trustee 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 Trustee 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,
(i) the
Depositor shall notify the Trustee in writing of any changes to or approval
of
such Form 10-K and (ii) an officer of the Depositor shall execute the Form
10-K
and return an electronic or fax copy of such executed Form 10-K (with an
original executed hard copy to follow by overnight mail). Upon receipt of the
executed Form 10-K and in the absence of receipt of any written changes or
approval, the Trustee shall be entitled to assume that such Form 10-K is in
final form and the Trustee may proceed with the filing of the 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 Trustee will follow the procedures set forth in subsection (d)(ii)
of this Section 3.07. Promptly (but no later than 1 Business Day) after filing
with the Commission, the Trustee will make available on its internet website
a
final executed copy of each Form 10-K filed by the Trustee. The parties to
this
Agreement acknowledge that the performance by the Depositor and the Trustee
of
its duties under this Section 3.07(b) related to the timely preparation,
execution and filing of Form 10-K is contingent upon such parties (and any
Servicing Function Participant) strictly observing all applicable deadlines
in
the performance of their duties under this Section 3.07(b), Section 3.06,
Section 3.05, Section 3.04(a) and Section 3.04(b). Neither the Servicer nor
the
Trustee 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 Trustee’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, and
for
any erroneous, inaccurate or incomplete information or certification provided
to
the Trustee, not resulting from its own negligence, bad faith or willful
misconduct.
83
(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 Trustee that, as of the 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 Trustee 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 Trustee shall be entitled to rely on such representations in preparing
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 Trustee 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 responsible parties set forth on Exhibit
O to the Depositor and Trustee and directed and approved by the Depositor
pursuant to the following paragraph and the Trustee 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 R hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than noon Eastern Standard Time
on
the 2nd Business Day after the occurrence of a Reportable Event (i) the parties
to the HarborView Mortgage Loan Trust 2007-3 transaction shall be required
to
provide to the Trustee 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 Trustee and such party, the form and substance of any Form 8-K
Disclosure Information, if applicable, together with an Additional Disclosure
Notification in the form of Exhibit U hereto 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 Trustee in
connection with including any Form 8-K Disclosure Information in Form 8-K
pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Trustee shall forward electronically a copy of
the
Form 8-K to the Depositor and XxXxx Xxxxxx LLP by noon New York City time on
the
3rd Business Day after the occurrence of a Reportable Event. Promptly, but
no
later than the close of business on the third Business Day after the Reportable
Event, (i) the Depositor shall notify the Trustee in writing of any change
to or
approval of such Form 8-K and (ii) an officer of the Depositor shall execute
the
Form 8-K and return an electronic or fax copy of such executed Form 8-K (with
an
original executed hard copy to follow by overnight mail). Upon receipt of the
executed Form 8-K and in the absence of receipt of any written changes or
approval, the Trustee shall be entitled to assume that such Form 8-K is in
final
form and the Trustee may proceed with filing of the 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 Trustee will follow the procedures set forth in subsection (d)(ii) of this
Section 3.07. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Trustee will, make available on its internet website a final
executed copy of each Form 8-K filed by the Trustee. The parties to this
Agreement acknowledge that the performance by the Depositor and the Trustee
of
their respective duties under this Section 3.07(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 3.07(c). The Trustee shall have no 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 Trustee’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.
84
(d) Suspension
of Reporting; Amendments; Late Filings.
(i) On
or
prior to January 30 of the first year in which the Trust Fund is able to do
so
under applicable law, the Trustee 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.
(ii) In
the
event that the Trustee 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 Trustee 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 Trustee shall, 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 that the Trustee has actual knowledge or has received notice 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
Additional Form 8-K Disclosure Information or any amendment to such disclosure
(other than for the purpose of restating any Distribution Date Statement),
the
Trustee 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, Form 10-K or 10-D shall be signed
by an officer of the Depositor. The parties to this Agreement acknowledge that
the performance by the Depositor and the Trustee of their respective duties
under this Section 3.07(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 3.07.
The Trustee shall not have any liability for any loss, expense, damage, claim
arising out of or with respect to any failure to properly prepare 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 Trustee’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, and for any erroneous, inaccurate or
incomplete information or certification provided to the Trustee, not resulting
from its own negligence, bad faith or willful misconduct.
85
(e) Not
later
than March 15 of each year (beginning in 2008) (or, if such day is not a
Business Day, the immediately preceding Business Day), the Trustee shall sign
the Trustee Certification (in the form attached hereto as Exhibit P) for the
benefit of the Depositor and its officers, directors and
affiliates.
Any
notice or notification required to be delivered by the Trustee to the Depositor
pursuant to this Section 3.07 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 Trustee to XxXxx Xxxxxx LLP
pursuant to this Section 3.07, may be delivered via e-mail to
XXXXX@xxxxxxxxxxx.xxx.
|
SECTION
3.08.
|
Additional
Information.
|
Each
of
the parties agrees to provide to the Trustee such additional information related
to such party as the Trustee 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
3.09.
|
Intention
of the Parties and
Interpretation.
|
Each
of
the parties acknowledges and agrees that the purpose of Section 3.04 through
Section 3.09 of this Agreement is to facilitate compliance by the Trustee 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 Trustee or the Depositor for delivery of such additional
or
different information as the Trustee 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.
86
|
SECTION
3.10.
|
Indemnification
by the Trustee.
|
(a) The
Trustee agrees to indemnify the Depositor, its officers, directors, agents
and
employees for, and to hold them harmless against, any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses (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 Trustee’s failure to file a Form 10-D or Form 10-K in
accordance with Section 3.07 or any failure by the Trustee to deliver any
information, report or certification, when and as required under Section 8.01,
(ii) by reason of the Trustee’s willful misfeasance, reckless disregard, bad
faith or negligence in the performance of such obligations pursuant to Section
3.07 or (iii) any material misstatement or omission made in the Trustee
Certification; provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), such indemnified Person shall have given
the
Trustee written notice thereof promptly after such indemnified Person shall
have
with respect to such claim or legal action knowledge thereof; provided,
however,
that
such agreement by the Trustee to indemnify and hold harmless such Person shall
not include or apply to any such losses, damages, penalties, fines, forfeitures,
legal fees or expenses or related costs, judgments, or any other costs, fees
or
expenses arising from, caused by or resulting from the actions or omissions
of
any Person other than the Trustee, including without limitation the negligence,
willful misfeasance, bad faith or reckless disregard of duties or obligations
under or pursuant to this Agreement, the Servicing Agreement or other applicable
agreement by the Depositor or the Servicer, including without limitation any
erroneous, inaccurate or incomplete information or certification provided to
the
Trustee by the Depositor or the Servicer in connection with, or any failure
or
delay on the part of the Depositor or the Servicer to provide any information
or
certification necessary to, the Trustee’s performance under Section 3.07. If the
indemnification provided for in this Section 3.10 is unavailable or insufficient
to hold harmless such indemnified Persons, then the Trustee shall contribute
to
the amount paid or payable by such indemnified Persons as a result of the
losses, claims, damages or liabilities of such indemnified Persons in such
proportion as is appropriate to reflect the relative fault of the Depositor
on
the one hand and the Trustee on the other. This indemnity shall survive the
resignation or removal of the Trustee and the termination of this Agreement.
Notwithstanding the foregoing, in no event shall the Trustee be liable for
any
consequential, indirect or punitive damages.
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise referred to in Subsection (a)
above.
87
|
SECTION
3.11.
|
[Reserved].
|
|
SECTION
3.12.
|
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 Trustee, the Depositor and
the Seller 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, the Trustee shall be obligated to
enter into any amendment pursuant to this Section that adversely affects its
obligations or immunities under this Agreement.
|
SECTION
3.13.
|
Duties
of the Credit Risk
Manager.
|
(a) 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 Premiums with respect to the Mortgage
Loans. Such reports and recommendations will be based upon information provided
pursuant to the Credit Risk Management Agreement to the Credit Risk Manager
by
the Servicer. The Credit Risk Manager shall look solely to the 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 the Trustee shall have no obligation to provide any such information to
the
Credit Risk Manager and shall not otherwise have any responsibility with respect
to the performance of the Credit Risk Manager.
|
SECTION
3.14.
|
Limitation
Upon Liability of the Credit Risk
Manager.
|
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
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 the Servicer under the 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 Agreement. 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
pursuant to the Credit Risk Management Agreement in the performance of its
duties thereunder and hereunder.
|
SECTION
3.15.
|
Removal
of Credit Risk Manager.
|
88
The
Credit Risk Manager may be removed as Credit Risk Manager by the Depositor
at
any time, without cause, with the consent of Certificateholders holding not
less
than a 66-2/3% of the Voting Rights, upon ten (10) days prior written notice.
The Depositor shall provide such written notice to the Trustee and upon receipt
of such notice and evidence of such Certificateholders’ consent, 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
Servicer shall establish and maintain one or more custodial accounts (the
“Servicing Accounts”) in accordance with the 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 Servicing Agreement) of receipt all collections of principal
and interest on any Mortgage Loan and with respect to any REO Property received
by the Servicer, including Principal Prepayments, Prepayment Penalty Amounts,
Insurance Proceeds, Liquidation Proceeds, Recoveries and advances made from
the
Servicer’s own funds (less, in the case of the Servicer, the applicable
servicing compensation, in whatever form and amounts as permitted by the
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 Servicing Account for purposes required or permitted by
this
Agreement and the 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. The Servicing Agreement sets forth
the
criteria for the segregation, maintenance and investment of each 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.
(b) To
the
extent provided in the Servicing Agreement and subject to this Article IV,
on or
before each Servicer Remittance Date, the Servicer shall withdraw or shall
cause
to be withdrawn from the Servicing Accounts and shall immediately remit or
cause
to be remitted to the Trustee 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 Initial
Cut-off Date, or, in the case of Subsequent Mortgage Loans, on or before the
applicable Subsequent 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 Servicer pursuant to the Servicing Agreement which were due on or before
the related Due Date, net of the amount thereof comprising the Servicing Fees
and Lender Paid Mortgage Insurance Fees, if any;
89
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicer 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 and any Recoveries received in the related Prepayment
Period;
(iii) Principal
Prepayments in part received by the Servicer for such Mortgage Loans in the
related Prepayment Period;
(iv) Prepayment
Penalty Amounts, if any; 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 Servicing Agreement.
(c) Withdrawals
may be made from a Servicing Account only to make remittances as provided in
Section 4.01(b), to reimburse the 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 Agreement. As provided in Section 4.01(b), certain amounts otherwise
due to the Servicer may be retained by them and need not be remitted to the
Trustee.
|
SECTION
4.02.
|
Distribution
Account.
|
(a) The
Trustee shall establish and maintain an account, for the benefit of the
Certificateholders, as a segregated, non-interest bearing trust account which
shall be an Eligible Account (the “Distribution Account”). The Distribution
Account shall constitute a trust account of the Trust Fund segregated on the
books of the Trustee and held by the Trustee 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 Trustee (whether made directly, or
indirectly through a liquidator or receiver of the Trustee). 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
Trustee or their affiliates are permitted to receive additional compensation
that could be deemed to be in their economic self-interest for (i) serving
as
investment adviser, yield maintenance 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 Trustee
shall, promptly upon receipt from the Servicer on the Servicer Remittance Date
deposit into the Distribution Account and retain on deposit until the related
Distribution Date, the following amounts:
(i) any
amounts withdrawn from a Servicing Account pursuant to Section 4.01(b) and
the
Servicing Agreement and remitted to the Trustee;
(ii) any
amounts required to be deposited by the Trustee with respect to the Mortgage
Loans pursuant to this Agreement;
90
(iii) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller or
an
Originator under this Agreement or the related Purchase Agreement, as
applicable, any Substitution Adjustments pursuant to Section 2.03 of this
Agreement, any purchase price paid by any NIMS Insurer for the purchase of
any
Distressed Mortgage Loan under Section 10.03, and all proceeds of any Mortgage
Loans or property acquired with respect thereto purchased by the Terminator
pursuant to Section 10.01;
(iv) any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(v) any
other
amounts so 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 Trustee
in
trust for the benefit of 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 and (ii) the items enumerated in Subsections 4.03(a)(i) through (viii)
and (xii) with respect to the Servicer, need not be remitted by the Servicer
to
the Trustee. In the event that the Servicer has remitted to the Trustee any
amount not required to be credited to the Distribution Account, the Servicer
may
at any time, by delivery of a written request signed by a Servicing Officer
of
the deposited in error, direct the Trustee to withdraw such amount from the
Distribution Account for repayment to the Servicer. In the event that the
Trustee has deposited to the Distribution Account any amount not required to
be
credited thereto, it may at any time, withdraw such amount from the Distribution
Account.
(c) The
amount at any time credited to the Distribution Account shall, if invested,
be
invested at the direction of the Trustee, 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
Trustee on behalf of the Certificateholders. 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 Trustee, 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 Trustee, and the risk of loss of moneys resulting from such
investments shall be borne by and be the risk of the Trustee. The Trustee 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
Trustee shall, from time to time, withdraw or transfer funds from the
Distribution Account to the Servicer, or to itself for the following
purposes:
91
(i) to
reimburse the Servicer for any Advance of its own funds, the right of the
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, Liquidation Proceeds and the
Termination Price) which represent late payments or recoveries of the principal
of or interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Servicer from Insurance Proceeds or Liquidation Proceeds relating
to a particular Mortgage Loan for amounts expended by the 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 Servicer from Insurance Proceeds relating to a particular Mortgage
Loan for insured expenses incurred with respect to such Mortgage Loan and to
reimburse the Servicer from Liquidation Proceeds from a particular Mortgage
Loan
for Liquidation Expenses incurred with respect to such Mortgage Loan;
(iv) to
pay
the Servicer, as appropriate, from Liquidation Proceeds or Insurance Proceeds
received in connection with the liquidation of any Mortgage Loan, the amount
which the Servicer would have been entitled to receive under subclause (xii)
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 Servicer from the Purchase Price for any Mortgage Loan, the amount which
the
Servicer would have been entitled to receive under subclause (xii) of this
Subsection 4.03(a) as servicing compensation;
(vi) to
reimburse the 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 Servicer for any Advance after a Realized Loss has been allocated
with respect to the related Mortgage Loan if the Advance has not been reimbursed
pursuant to clauses (i) and (vi);
(viii) to
pay
the Servicer its monthly Servicing Fee and any other servicing compensation
payable pursuant to the Servicing Agreement;
(ix) to
pay
the Trustee any investment income;
(x) [Reserved];
92
(xi) to
reimburse or pay the Servicer any such amounts as are due thereto under the
Servicing Agreement and have not been retained by or paid to the Servicer,
to
the extent provided in the Servicing Agreement;
(xii) to
reimburse the Trustee for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to Sections 8.05, 8.17 or 8.18;
(xiii) to
reimburse the Yield Maintenance Administrator for expenses, costs and
liabilities incurred by or reimbursable to it pursuant to Section
8.19;
(xiv) [Reserved];
(xv) to
reimburse the Yield Maintenance Administrator for expenses, costs and
liabilities incurred by or reimbursable to it as a result of the performance
of
its duties under the Yield Maintenance Allocation Agreement and the Yield
Maintenance Agreement pursuant to Section 8.19; and
(xvi) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) The
Trustee 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
(viii), inclusive 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 Trustee
without being deposited in the Distribution Account under Section
4.02(b).
(c) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Trustee 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.
(d) On
each
Distribution Date, the Trustee, 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.
|
SECTION
4.04.
|
[Reserved].
|
|
SECTION
4.05.
|
[Reserved].
|
|
SECTION
4.06.
|
Prefunding
Account.
|
On
or
prior to the Closing Date, the Trustee shall establish and maintain, on behalf
of the Certificateholders, the Prefunding Account. On the Closing Date, the
Depositor shall remit the Prefunded Amount to the Trustee for deposit in the
Prefunding Account. From the Prefunded Amount, the Group 1 Prefunded Amount
and
the Group 2 Prefunded Amount shall
be
applied to the purchase of Subsequent Mortgage Loans for Loan Group 1 and Loan
Group 2, respectively. On each Subsequent Transfer Date, upon satisfaction
of
the conditions for such Subsequent Transfer Date set forth in
Section 2.01(b), with respect to the related Subsequent Transfer Agreement,
the Trustee shall remit to the Depositor the applicable Aggregate Subsequent
Transfer Amount as payment of the purchase price for the related Subsequent
Mortgage Loans.
93
If
any
funds remain in the Prefunding Account at the end of the Prefunding Period,
to
the extent that they represent earnings on the amounts originally deposited
into
the Prefunding Account, the Trustee shall distribute them to the order of the
Depositor. The remaining funds shall be transferred to the Distribution Account
to be included as part of principal distributions to the Certificates on the
Distribution Date in the month following the end of the Prefunding
Period.
Each
institution at which the Prefunding Account is maintained shall either hold
such
funds on deposit uninvested or shall invest the funds therein in Permitted
Investments as directed in writing by the Depositor, which shall mature not
later than the Business Day immediately preceding a Subsequent Transfer Date
and
shall not be sold or disposed of prior to its maturity. In the absence of
direction, such funds shall remain uninvested. All such Permitted Investments
shall be made for the benefit of the Certificateholders. All income and gain
net
of any losses realized from any such balances or investment of funds on deposit
in the Prefunding Account shall be for the benefit of the Depositor and shall
be
remitted to it monthly. The amount of any net investment losses in the
Prefunding Account shall promptly be deposited by the Depositor in the
Prefunding Account.
|
SECTION
4.07.
|
Capitalized
Interest Account.
|
On
or
prior to the Closing Date, the Trustee shall establish and maintain, on behalf
of the Certificateholders, the Capitalized Interest Account. The Capitalized
Interest Account shall be an Eligible Account. On the Closing Date, the Seller
shall deposit in the Capitalized Interest Account the Original Capitalized
Interest Amount. On the Business Day preceding any Distribution Date occurring
during the Prefunding Period, the Trustee shall withdraw from the Capitalized
Interest Account an amount equal to the Capitalized Interest Requirement (based
on a monthly report provided to the Trustee by the Servicer no later than such
Business Day) for deposit into the Certificate Account for distribution to
Certificateholders in accordance with Article V on such Distribution Date.
Amounts on deposit in the Capitalized Interest Account shall be invested in
a
money market or common trust fund as described in paragraph (vii) of the
definition of “Permitted Investments” set forth in Article I. All investment
income and other gain on such investments shall be for the benefit of the Seller
and shall be subject to withdrawal on order of the Seller from time to time.
The
amount of any losses incurred in respect of any such investments shall be paid
by the Seller by a deposit into the Capitalized Interest Account of its own
funds, immediately as realized. Amounts may be released from the Capitalized
Interest Account and paid to the depositor at any time, if permitted by S&P
as evidenced in a written confirmation from such Rating Agency. At the end
of
the Prefunding Period, all amounts, if any, on deposit in the Capitalized
Interest Account shall be withdrawn by the Trustee and distributed to the Seller
and the Capitalized Interest Account shall be terminated.
94
ARTICLE
V
FLOW
OF FUNDS
|
SECTION
5.01.
|
Distributions.
|
(a) Distributions
From Available Funds.
On each
Distribution Date and after making any withdrawals from the Distribution Account
pursuant to Section 4.03(a), including in respect of the Credit Risk Manager
Fee
for such Distribution Date, the Trustee, as Paying Agent, shall withdraw funds
on deposit in the Distribution Account to the extent of Available Funds for
each
Loan Group for such Distribution Date and, based on the Distribution Date
Statement, make the following disbursements and transfers as set forth
below:
(i) The
Interest Remittance Amount and, solely to the extent of Deferred Interest for
such Distribution Date, Principal Prepayments for each Loan Group 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:
|
(A)
|
from
the Interest Remittance Amount and Principal Prepayments related
to the
Group 1 Mortgage Loans, in the following
priority:
|
|
(1)
|
first,
to the Final Maturity Reserve Account, the Group 1 Final Maturity
Reserve
Amount, if any, for that Distribution
Date;
|
|
(2)
|
second,
to the Final Maturity Reserve Account, the Group 2 Final Maturity
Reserve
Amount, if any, for that Distribution Date, to the extent not paid
pursuant to clause (B)(1) below;
|
|
(3)
|
third,
to the Holders of the Class 1A-1A Certificates, the related Monthly
Interest Distributable Amount and the Unpaid Interest Shortfall Amount,
if
any, to which such Class is entitled;
and
|
|
(4)
|
fourth,
concurrently, on a pro
rata
basis, to the Holders of the Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, the related Monthly Interest Distributable Amount and
the
Unpaid Interest Shortfall Amount, if any, to which each such Class
is
entitled, to the extent not paid pursuant to clause (B)(3)
below;
|
|
(B)
|
from
the Interest Remittance Amount and Principal Prepayments related
to the
Group 2 Mortgage Loans, in the following
priority:
|
95
|
(1)
|
first,
to the Final Maturity Reserve Account, the Group 2 Final Maturity
Reserve
Amount, if any, for that Distribution
Date;
|
|
(2)
|
second,
to the Final Maturity Reserve Account, the Group 1 Final Maturity
Reserve
Amount, if any, for that Distribution Date, to the extent not paid
pursuant to clause (A)(1) above;
|
|
(3)
|
third,
concurrently, on a pro
rata
basis, to the Holders of the Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, the related Monthly Interest Distributable Amount and
the
Unpaid Interest Shortfall Amount, if any, to which each such Class
is
entitled; and
|
|
(4)
|
fourth,
to the Holders of the Class 1A-1A Certificates, the Monthly Interest
Distributable Amount and the Unpaid Interest Shortfall Amount, if
any, to
which such Class is entitled, to the extent not paid pursuant to
clause
(A)(3) above;
|
|
(C)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-1 Certificates, the
related Monthly Interest Distributable
Amount;
|
|
(D)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-2 Certificates, the
related Monthly Interest Distributable Amount;
|
|
(E)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-3 Certificates, the
related Monthly Interest Distributable
Amount;
|
|
(F)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-4 Certificates, the
related Monthly Interest Distributable
Amount;
|
|
(G)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-5 Certificates, the
related Monthly Interest Distributable Amount;
|
|
(H)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-6 Certificates, the
related Monthly Interest Distributable
Amount;
|
|
(I)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-7 Certificates, the
related Monthly Interest Distributable Amount;
|
96
|
(J)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-8 Certificates, the
related Monthly Interest Distributable Amount;
|
|
(K)
|
from
the remaining Interest Remittance Amounts and Principal Prepayments
for
both Loan Groups, to the Holders of the Class B-9 Certificates, the
related Monthly Interest Distributable Amount;
and
|
|
(L)
|
for
application as part of Net Monthly Excess Cashflow for such Distribution
Date, as described under Section 5.01(a)(iv)
below;
|
(ii) On
each
Distribution Date (a) prior to the applicable Stepdown Date or (b) on which
a
Trigger Event is in effect, distributions in respect of principal to the extent
of the Principal Distribution Amount for each Loan Group shall be distributed
in
the following amounts and order of priority:
|
(A)
|
from
the related Principal Distribution Amount for the related Loan Group,
concurrently as follows:
|
|
(1)
|
from
the Principal Distribution Amount related to the Group 1 Mortgage
Loans,
in the following order of priority:
|
|
(a)
|
first,
to the Final Maturity Reserve Account, the Group 1 Final Maturity
Reserve
Amount, if any, for that Distribution Date remaining unpaid after
giving
effect to the distributions under clauses (a)(i)(A)(1) and (a)(i)(B)(2)
above;
|
|
(b)
|
second,
to the Holders of the Class 1A-1A Certificates, until their Class
Principal Balance has been reduced to zero;
and
|
|
(c)
|
third,
for application pursuant to clause (B) below, any Group 1 Principal
Distribution Amount remaining.
|
|
(2)
|
from
the Principal Distribution Amount related to the Group 2 Mortgage
Loans,
in the following order of priority:
|
|
(a)
|
first,
to the Final Maturity Reserve Account, the Group 2 Final Maturity
Reserve
Amount, if any, for that Distribution Date remaining unpaid after
giving
effect to the distribution under clauses (a)(i)(A)(2) and (a)(i)(B)(1)
above;
|
|
(b)
|
second,
to the Holders of the Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, pro
rata,
based on their respective Class Principal Balances immediately prior
to
such Distribution Date, until their respective Class Principal Balances
have been reduced to zero; and
|
97
|
(c)
|
third,
for application pursuant to clause (B) below, any Group 2 Principal
Distribution Amount remaining.
|
|
(B)
|
from
the Principal Distribution Amount for both Loan
Groups
|
|
(1)
|
to
the Holders of the Class B-1 Certificates, until the Class Principal
Balance thereof has been reduced to
zero;
|
|
(2)
|
to
the Holders of the Class B-2 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
|
|
(3)
|
to
the Holders of the Class B-3 Certificates, until the Class Principal
Balance thereof has been reduced to
zero;
|
|
(4)
|
to
the Holders of the Class B-4 Certificates, until the Class Principal
Balance thereof has been reduced to
zero;
|
|
(5)
|
to
the Holders of the Class B-5 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
|
|
(6)
|
to
the Holders of the Class B-6 Certificates, until the Class Principal
Balance thereof has been reduced to
zero;
|
|
(7)
|
to
the Holders of the Class B-7 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
|
|
(8)
|
to
the Holders of the Class B-8 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
|
|
(9)
|
to
the Holders of the Class B-9 Certificates, until the Class Principal
Balance thereof has been reduced to zero;
and
|
|
(10)
|
for
application as part of Net Monthly Excess Cashflow for such Distribution
Date, as described under Section 5.01(a)(iv)
below.
|
(iii) On
each
Distribution Date (a) on or after the applicable Stepdown Date and (b) on which
a Trigger Event is not in effect, distributions in respect of principal to
the
extent of the Principal Distribution Amount for each Loan Group shall be
distributed in the following amounts and order of priority:
98
|
(A)
|
from
the Senior Principal Distribution Amount for the related Loan Group,
concurrently as follows:
|
|
(1)
|
the
Group 1 Principal Distribution Amount shall be distributed in the
following order of priority:
|
|
(a)
|
first,
to the Final Maturity Reserve Account, the Group 1 Final Maturity
Reserve
Amount, if any, for that Distribution Date remaining unpaid after
giving
effect to the distribution under clauses (a)(i)(A)(1) and (a)(i)(B)(2)
above;
|
|
(b)
|
second,
to the Holders of the Class 1A-1A Certificates, until their Class
Principal Balance has been reduced to zero;
and
|
|
(c)
|
third,
for application pursuant to clause (B) below, any Group 1 Principal
Distribution Amount remaining undistributed for such Distribution
Date.
|
|
(2)
|
the
Group 2 Principal Distribution Amount shall be distributed in the
following order of priority:
|
|
(a)
|
first,
to the Final Maturity Reserve Account, the Group 2 Final Maturity
Reserve
Amount, if any, for that Distribution Date remaining unpaid after
giving
effect to the distribution under clauses (a)(i)(A)(2) and (a)(i)(B)(1)
above;
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|
(b)
|
second,
to the Holders of the Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, pro
rata,
based on their respective Class Principal Balances immediately
prior to
such Distribution Date, until their respective Class Principal
Balances
have been reduced to zero; and
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|
(c)
|
third,
for application pursuant to clause (B) below, any Group 2 Principal
Distribution Amount remaining undistributed for such Distribution
Date.
|
|
(B)
|
from
the Principal Distribution Amount for both Loan
Groups
|
|
(1)
|
to
the Holders of the Class B-1 Certificates, the Class B-1 Principal
Distribution Amount;
|
|
(2)
|
to
the Holders of the Class B-2 Certificates, the Class B-2 Principal
Distribution Amount
|
99
|
(3)
|
to
the Holders of the Class B-3 Certificates, the Class B-3 Principal
Distribution Amount;
|
|
(4)
|
to
the Holders of the Class B-4 Certificates, the Class B-4 Principal
Distribution Amount;
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|
(5)
|
to
the Holders of the Class B-5 Certificates, the Class B-5 Principal
Distribution Amount;
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|
(6)
|
to
the Holders of the Class B-6 Certificates, the Class B-6 Principal
Distribution Amount
|
|
(7)
|
to
the Holders of the Class B-7 Certificates, the Class B-7 Principal
Distribution Amount;
|
|
(8)
|
to
the Holders of the Class B-8 Certificates, the Class B-8 Principal
Distribution Amount;
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|
(9)
|
to
the Holders of the Class B-9 Certificates, the Class B-9 Principal
Distribution Amount; and
|
|
(10)
|
for
application as part of Net Monthly Excess Cashflow for such Distribution
Date, as described under Section 5.01(a)(iv)
below.
|
(iv) On
each
Distribution Date, other than the Distribution Date following the optional
purchase of the Mortgage Loans pursuant to Section 10.01, the Net Monthly Excess
Cashflow shall be distributed as follows:
|
(A)
|
to
the Holders of the Class or Classes of Certificates then entitled
to
receive distributions in respect of principal, in an amount equal
to the
principal portion of Realized Losses previously allocated to reduce
the
Class Principal Balance of such certificates, pro
rata,
to each such Class based on the Class Principal Balance of each such
Certificate prior to such Distribution Date as a distribution in
respect
of principal, but only to the extent of Recoveries for that Distribution
Date:
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|
(B)
|
as
part of the Principal Distribution Amount, to pay to the Holders
of the
Senior Certificates and the Subordinate Certificates in reduction
of their
Class Principal Balances, the principal portion of Realized Losses
incurred on the Mortgage Loans in the preceding calendar month;
pro
rata,
to each such Class based on the Class Principal Balance of each such
Certificate prior to such Distribution Date as a distribution in
respect
of principal;
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|
(C)
|
to
the Holders of the Class or Classes of Certificates then entitled
to
receive distributions in respect of principal, in an amount equal
to any
Extra Principal Distribution Amount, pro
rata,
to each such Class based on the Class Principal Balance of each such
Certificate prior to such Distribution Date as a distribution in
respect
of principal;
|
100
|
(D)
|
to
the Holders of the Senior Certificates and the Subordinate Certificates,
the amount of any Interest Shortfalls computed without regard to
any
Relief Act Reductions allocated thereto for such Distribution Date,
on a
pro
rata
basis based on Interest Shortfalls allocated thereto, to the extent
not
covered by the Servicing Fee on that Distribution Date;
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|
(E)
|
to
the Holders of the Senior Certificates and the Subordinate Certificates,
any Net Interest Shortfalls remaining unpaid from prior Distribution
Dates
together with interest thereon, on a pro
rata
basis based on unpaid Net Interest Shortfalls computed without regard
to
any Relief Act Reductions previously allocated
thereto;
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|
(F)
|
to
the Basis Risk Reserve Fund, the Required Reserve Fund Deposit, if
any,
and then from the Basis Risk Reserve Fund to the Holders of the Senior
Certificates, pro
rata,
and then to the Holders of the Subordinate Certificates, sequentially,
in
order of priority of distributions beginning with the Class B-1
Certificates, the amount of any Basis Risk Shortfall remaining unpaid
as
of such Distribution Date;
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|
(G)
|
to
the Holders of the Senior Certificates and the Subordinate Certificates,
in an amount equal to any Interest Shortfalls resulting from Relief
Act
Reductions for such Distribution Date, pro
rata,
based on the amount of Interest Shortfalls resulting from Relief
Act
Reductions allocated to each Class for such Distribution
Date;
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|
(H)
|
to
the Holders of the Senior Certificates, pro
rata,
and then to the Holders of the Subordinate Certificates, sequentially,
in
order of priority of distributions beginning with the Class B-1
Certificates, the principal portion of any Allocated Realized Loss
Amounts
remaining unreimbursed;
|
|
(I)
|
to
the Holders of the Class C Certificates, the Class C Distributable
Amount;
|
|
(J)
|
on
the Distribution Date immediately following the last Distribution
date on
which Prepayment Penalty Amounts can be collected by any Servicer,
to the
Holders of the Class P Certificates, $100.00;
and
|
101
|
(K)
|
to
the Holders of the Residual Certificates, pro
rata,
any Available Funds then remaining.
|
(v) On
the
Distribution Date following the optional purchase of the Mortgage Loans pursuant
to Section 10.01, Available Funds will be applied in the amounts and in the
order specified above except that any Premium Proceeds will be distributable
in
respect of the Class C 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 of each Certificate of that
Class.
(c) [Reserved]
(d) Notwithstanding
the priorities and allocations set forth in Section 5.01(a) above, if on any
Distribution Date on which the Senior Certificates related to a Loan Group
constitute an Undercollateralized Group, all amounts otherwise distributable
as
Available Funds on the Subordinate Certificates, in reverse order of priority
(or, following the Senior Credit Support Depletion Date, such other amounts
described in the immediately following sentence), will be distributed as
principal to the Senior Certificates of such Undercollateralized Group in the
same order and priority and allocation provided in Section 5.01(a), first,
up to
the sum of the Accrued Interest Amount and the Principal Deficiency Amount
for
the Undercollateralized Group (such distribution, an “Undercollateralization
Distribution”)
and
second,
to pay
to the Subordinate Certificates and the Residual Certificates in the same order
and priority as provided in Section 5.01(a)(ii), (iii) and (iv). In the event
that the Senior Certificates related to a Loan Group constitute an
Undercollateralized Group on any Distribution Date following the Senior Credit
Support Depletion Date, Undercollateralization Distributions will be made from
any Available Funds from the Loan Group not related to an Undercollateralized
Group remaining after all required amounts have been distributed to the related
Class of Senior Certificates related to such other Loan Group.
Undercollateralization Distributions will be applied first
to pay
accrued but unpaid interest, if any, and second
to pay
principal in the same priority and allocation provided in Section
5.01(a).
(e) Distributions
on Physical Certificates.
The
Trustee 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.
(f) 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 Depositor or the Seller shall have any
responsibility therefor.
102
(g) Distributions
from Final Maturity Reserve Account.
On the
Final Maturity Reserve Termination Date, the Trustee shall distribute the funds
on deposit in the Final Maturity Reserve Account on such date in the following
order of priority:
(i) to
the
Holders of the Class 1A-1A, Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, pro
rata,
after
giving effect to principal distributions on such Distribution Date pursuant
to
Sections 5.01(a)(ii) or (iii) above, as applicable, 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
Holders of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6,
Class B-7, Class B-8 and Class B-9 Certificates, sequentially, in that order,
after giving effect to principal distributions on such Distribution Date
pursuant to Sections 5.01(a)(ii) or (iii) above, as applicable, 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
Holders of the Class 1A-1A, Class 2A-1A, Class 2A-1B and Class 2A-1C
Certificates, pro
rata,
any
Interest Distributable Amounts for each such Class remaining unpaid on such
Distribution Date, in the same priorities as set forth in Section 5.01(a)(i);
(iv) to
the
Holders of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6,
Class B-7, Class B-8 and Class B-9 Certificates, sequentially, in that order,
any Interest Distributable Amounts for each such Class remaining unpaid on
such
Distribution Date; and
(v) to
the
extent of any funds remaining in the Final Maturity Reserve Account after
payment pursuant to clauses (i) through (iv) above, to the Holders of the Class
C Certificates.
Notwithstanding
anything to the contrary in this Section 5.02(g), all amounts distributable
to
the Holders of the Class 1A-1A Certificates on account of the Mortgage Loans,
shall be distributable first on account of the Group 1 Mortgage
Loans.
(h) Distributions
from Yield Maintenance Account.
On each
Distribution Date beginning on the Distribution Date in December
2009 through
and including the Distribution Date in May 2017, the Trustee shall distribute
the funds on deposit in the Yield Maintenance Account for such date after making
all distributions under Section 5.01(a)(iv) above as follows:
(i) to
the
Holders of the Senior Certificates, pro
rata,
any
Allocated Realized Loss Amounts to the extent unpaid;
103
(ii) to
the
Holders of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6,
Class B-7, Class B-8 and Class B-9 Certificates, sequentially, in that order,
any Allocated Realized Loss Amounts to the extent unpaid;
(iii) to
the
Holders of the Senior Certificates, pro
rata,
any
Basis Risk Shortfalls to the extent unpaid;
(iv) to
the
Holders of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6,
Class B-7 and Class B-8 Certificates, sequentially, in that order, any Basis
Risk Shortfalls to the extent unpaid;
(v) to
the
Holders of the Senior Certificates, pro
rata,
the
related Monthly Interest Distributable Amount and any Unpaid Interest Shortfall
Amounts to the extent unpaid;
(vi) to
the
Holders of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6,
Class B-, Class B-8 and Class B-9 Certificates, sequentially, in that order,
the
related Monthly Interest Distributable Amount and any Unpaid Interest Shortfall
Amounts to the extent unpaid;
(vii) to
the
Holders of the Senior Certificates and the Subordinate Certificates, any amounts
necessary to maintain the applicable Overcollateralization Target Amount
(provided
that the
amount distributable on any Distribution Date pursuant to this subsection (vii)
cannot exceed the excess, if any, of (x) all Realized Losses for such
Distribution Date and for all prior Distribution Dates over (y) the sum of
all
amounts distributed pursuant to this subsection (vii) on all prior Distribution
Dates); and
(viii) to
the
Class C Certificates, all amounts remaining.
(i) On
each Distribution Date, the Trustee, as Paying Agent, shall withdraw all
Prepayment Penalty Amounts from funds on deposit in the Distribution Account
and
shall distribute such amounts to the Holders of the Class P
Certificates.
(j) On
each
Distribution Date, the Trustee, as Paying Agent, shall withdraw the Class ES
Distributable Amount from funds on deposit in the Distribution Account and
shall
distribute such amounts to the Holders of the Class ES
Certificates.
|
SECTION
5.02.
|
Allocation
of Net Deferred Interest.
|
For
any
Distribution Date, Net Deferred Interest shall be allocated to each Class of
LIBOR Certificates in an amount equal to the excess, if any, of (i) the amount
that would have been the Monthly Interest Distributable Amount for such Class
if
the Monthly Interest Distributable Amount for such Class had been computed
at
the Pass-Through Rate for such Class, over (ii) the actual Monthly Interest
Distributable Amount for such Class. On each Distribution Date, any amount
of
Net Deferred Interest allocable to a Class of LIBOR Certificates on such
Distribution Date shall be added as Principal to the outstanding Class Principal
Balance of such Class of Certificates. Any Net Deferred Interest that is not
allocable to any Class of LIBOR Certificates pursuant to the first sentence
of
this paragraph shall be allocated to the Class C Certificates and thereby
increase the Overcollateralized Amount.
104
|
SECTION
5.03.
|
Allocation
of Realized Losses.
|
(a) On
or
prior to each Distribution Date, the Trustee shall aggregate the loan-level
information provided by the Servicer with respect to the total amount of
Realized Losses, if any, with respect to the Mortgage Loans in each Loan Group
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 in the following order of priority:
(i) to
Net
Monthly Excess Cashflow;
(ii) to
the
Overcollateralized Amount, until such amount has been reduced to
zero;
(iii) 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
|
(iv)
|
(A)
|
with
respect to such losses related to the Group 1 Mortgage Loans, to
the Class
1A-1A Certificates, until the Class Principal Balance of such Class
is
reduced to zero; and
|
|
(B)
|
with
respect to such losses related to the Group 2 Mortgage Loans, to
the Class
2A-1A, Class 2A-1B and Class 2A-1C Certificates, sequentially,
first,
to the Class 2A-1C Certificates, second,
to the Class 2A-1B Certificates and third,
to the Class 2A-1A Certificates, in that order, until the Class Principal
Balance of each such Class is reduced to
zero.
|
(c) The
Class
Principal Balance of first, the Class C Certificates and second, 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.
105
(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 Trustee shall make available to each Certificateholder,
the Yield Maintenance Provider, the Seller, any NIMS Insurer and each Rating
Agency, a statement based, as applicable, on loan-level information obtained
from the Servicer (the “Distribution Date Statement”) as to the distributions to
be made or made, as applicable, on such Distribution Date. Information in the
Distribution Date Statement relating to or based on amounts available in the
Yield Maintenance Account shall be based on information provided by the Yield
Maintenance Provider regarding any Yield Maintenance Distributable Amounts
required to be paid by the Yield Maintenance Provider for the related
Distribution Date pursuant to the Yield Maintenance Agreement. The Distribution
Date Statement shall include the following information, in each case, with
respect to such Distribution Date:
(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) [Reserved];
(iv) the
aggregate amount of Servicing Fees and Credit Risk Manager Fees for the related
Due Period;
(v) the
amount of Advances for each Loan Group and the aggregate amount of Advances
for
the related Due Period and the amount of unreimbursed Advances;
(vi) the
Loan
Group Balance for each Loan Group and the Net WAC for each Loan Group at the
Close of Business at the end of the related Due Period;
(vii) the
Pool
Balance and the Loan Group Balance for such Distribution Date;
(viii) for
each
Loan Group, the aggregate Principal Balance of the MTA Indexed Mortgage Loans
and COFI Indexed Mortgage Loans at the Close of Business at the end of the
related Due Period;
(ix) for
each
Loan Group, 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;
106
(x) for
each
Loan Group, the number, 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;
(xi) for
each
Loan Group, the number and aggregate unpaid principal balance of the related
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, using the OTS
method;
(xii) for
each
Loan Group, 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 in each Loan Group as of the Close of Business
of
the last day of the preceding Due Period;
(xiii) for
each
Loan Group, the aggregate amount of any Principal Prepayments, net Principal
Prepayments or other unscheduled recoveries of principal with respect to each
Loan Group made during the related Prepayment Period;
(xiv) for
each
Loan Group, the aggregate amount of Realized Losses incurred during the related
Due Period for each Loan Group and the cumulative amount of Realized Losses
and
the amount of Realized Losses, if any, allocated to each Class of Certificates
after giving effect to any distributions made thereon, on such Distribution
Date;
(xv) the
Class
Principal Balance of each Class of Certificates and the Apportioned Principal
Balances of the Subordinate Certificates after giving effect to any
distributions made thereon, on such Distribution Date;
(xvi) for
each
Loan Group, the Monthly Interest Distributable Amount and the Interest
Distributable Amount in respect of each related Class of Certificates, for
such
Distribution Date and the respective portions thereof, if any, remaining unpaid
following the distributions made in respect of such Certificates on such
Distribution Date;
(xvii) for
each
Class, the aggregate amount of any Net Interest Shortfalls and the Unpaid
Interest Shortfall Amount for such Distribution Date after giving effect to
any
distributions made thereon, on such Distribution Date;
(xviii) for
each
Loan Group, the related Available Funds;
(xix) for
each
Loan Group, the Pass-Through Rate and related Adjusted Cap Rate for each Class
of Certificates for such Distribution Date;
(xx) for
each
Loan Group, the aggregate Principal Balance of Mortgage Loans purchased
hereunder by the Seller during the related Due Period;
107
(xxi) for
each
Loan Group, the amount of any Principal Deficiency Amounts or Accrued Interest
Amounts paid to an Undercollateralized Group or amounts paid pursuant to Section
5.01(d);
(xxii) current
Recoveries allocable to each Loan Group;
(xxiii) the
amount of any Basis Risk Shortfall, if any, for each Class after giving effect
to any distributions made thereon, on such Distribution Date;
(xxiv) for
each
Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any,
for such Loan Group;
(xxv) the
amount of Net Deferred Interest, if any, added to the Class Principal Balance
of
the Certificates
(xxvi) the
amount of any Unpaid Interest Shortfall Amount;
(xxvii)
the
amount of the Group 1 Final Maturity Reserve Amount, the Group 2 Final Maturity
Reserve Amount and the Aggregate 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;
(xxiii) the
Overcollateralized Amount for that Distribution Date;
(xxix) the
Overcollateralization Target Amount for that Distribution Date;
(xxx) the
amount remitted by the Yield Maintenance Administrator to the Trustee pursuant
to the Yield Maintenance Allocation Agreement;
(xxxi) the
payments, if any, made from the Yield Maintenance Account and the amount
distributed to the LIBOR Certificates from such payments;
(xxxii) the
amount of any Class P Distributable Amount and the amount of any Class ES
Distributable Amount;
(xxxiii) the
amount on deposit in the Prefunding Account in the aggregate and for each Loan
Group (including a breakdown of amounts released during the prior calendar
month
in respect of Aggregate Subsequent Transfer Amounts or amounts included in
Available Funds on the Distribution Date in the month following the end of
the
Prefunding Period) and the amount of funds remaining in the Capitalized Interest
Account (after giving effect to distributions on such Distribution Date);
and
108
(xxxiv) the
aggregate Principal Balance and number of Subsequent Mortgage Loans purchased
in
the Prefunding Period.
The
Trustee 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 Trustee’s internet website. The Trustee’s internet website
shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Trustee’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
Trustee 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 Trustee shall provide timely and adequate notification to
all
parties regarding any such change.
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 Trustee
shall, upon written request, furnish to any NIMS Insurer and each Person who
at
any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person or any NIMS Insurer, such
information as is reasonably necessary to provide to such Person or any NIMS
Insurer 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 or any NIMS Insurer was a Certificateholder and such
other customary information which a Certificateholder reasonably requests to
prepare its tax returns. Such obligation of the Trustee shall be deemed to
have
been satisfied to the extent that substantially comparable information shall
be
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trustee 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 10th calendar day of each month, the Servicer shall deliver to the
Trustee by telecopy or electronic mail (or by such other means as the Servicer
and the Trustee may agree from time to time) the Remittance Report with respect
to the Distribution Date. No later than the Close of Business New York time
on
the fifth Business Day prior to the related Distribution Date, the Servicer
shall deliver or cause to be delivered to the Trustee 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 Trustee
may
reasonably require to perform the calculations necessary to make the
distributions contemplated by Section 5.01. The Trustee shall have no duty
or
obligation to calculate, recompute or verify any information in the Remittance
Report or other loan level information that it receives from the
Servicer.
109
(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 Servicer was required to make an advance pursuant to the Servicing
Agreement, exceeds the amount on deposit in the Distribution Account which
will
be used for an advance with respect to such Mortgage Loan, the Servicer shall,
on the Business Day preceding the Distribution Date, deposit in the Distribution
Account an amount equal to such deficiency, net of the Servicing Fee, for such
Mortgage Loan except to the extent the 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 Servicer shall continue to make such Advances through the date
that the Servicer is required to do so under the Servicing Agreement. If the
Servicer determines that an Advance is Nonrecoverable, it shall, on or prior
to
the related Distribution Date, present an Officer’s Certificate to the NIMS
Insurer and the Trustee (i) stating that the Servicer elects not to make a
Advance in a stated amount and (ii) detailing the reason it deems the advance
to
be Nonrecoverable.
|
SECTION
5.06.
|
Compensating
Interest Payments.
|
The
amount of the Servicing Fee payable to the 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 Servicer on the Servicer Remittance Date.
Such amount shall not be treated as an Advance and shall not be reimbursable
to
the Servicer.
|
SECTION
5.07.
|
Basis
Risk Reserve Fund.
|
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the Holders of the LIBOR Certificates, a 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 Trustee
held pursuant to this Agreement. The Basis Risk Reserve Fund shall not be an
asset of any REMIC established hereby.
(b) On
each
Distribution Date, other than the Distribution Date following the optional
purchase of the Mortgage Loans pursuant to Section 10.01, Net Monthly Excess
Cashflow shall be deposited in the Basis Risk Reserve Fund to the extent of
the
Required Reserve Fund Deposit pursuant to Section 5.01(a)(iv)(F).
(c) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
LIBOR Certificates, the Trustee, as Paying Agent for the Trustee, shall withdraw
(i) first,
from
the Yield Maintenance Account, the amount of such Basis Risk Shortfall for
such
Classes of Certificates for distribution on such Distribution Date pursuant
to
Section 5.01(h), and (ii) second,
from
the Basis Risk Reserve Fund, the amount of any such remaining Basis Risk
Shortfall for distribution on such Distribution Date to the Senior Certificates
any related Basis Risk Shortfall for such Distribution Date on a pro
rata
basis,
based on the respective amounts of Basis Risk Shortfalls for such Distribution
Date and then sequentially to the Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates in that
order up to the amount of Basis Risk Shortfalls due each such Class for such
Distribution Date.
110
(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 C Certificateholders. The Class C Certificates shall evidence
ownership of the Basis Risk Reserve Fund for federal income tax purposes and
the
Holders thereof shall direct the Trustee, in writing, as to investment of
amounts on deposit therein. The Class C Certificateholder(s) shall be liable
for
any losses incurred on such investments. In the absence of written instructions
from the Class C Certificateholder as to investment of funds on deposit in
the
Basis Risk Reserve Fund, such funds shall remain uninvested. 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 C Certificateholders.
(e) Upon
termination of the Trust Fund any amounts remaining in the Basis Risk Reserve
Fund shall be distributed to the Class C Certificateholders.
|
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), to the Class Principal Balance of such Class will be increased
by the amount of related Recoveries collected with regard to the related Loan
Group allocated to such Class for such Distribution Date as
follows:
(i) first,
the Class Principal Balance of each Class of Senior Certificates related to
the
Loan Group from which the Recovery was collected, will be increased,
pro
rata
up to
the Net Realized Losses for such Class for such Distribution Date,
and
(ii) second,
the Class Principal Balance of each Class of Subordinate Certificates will
be
increased in order of seniority, up to the Net Realized Losses for each such
Class for such Distribution Date.
|
SECTION
5.09.
|
The
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 Trustee, in trust, for the benefit of the holders
of
the Certificates (other than the Class ES, Class P and Class R Certificates).
The Trustee 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 Trustee held pursuant to this Agreement. Notwithstanding anything herein
to the contrary, the Trustee will only establish the Final Maturity Reserve
Account if there is any Group 1 Final Maturity Reserve Amount or Group 2 Final
Maturity Reserve Amount to be deposited therein.
111
(b) The
Trustee shall deposit into the Final Maturity Reserve Account any Final Maturity
Reserve Amounts pursuant to Section 5.01(a)(i)(A). The Trustee shall distribute
the funds in the Final Maturity Reserve Account pursuant to Section
5.01(g).
(c) Funds
in
the Final Maturity Reserve Account shall be invested in Permitted Investments
at
the written direction of the Holders of the Class C Certificates. Any earnings
on such amounts shall be distributed pursuant to Section 5.01(g). The Class
C
Certificates shall evidence ownership of the Final Maturity Reserve Trust for
federal income tax purposes and the Holder thereof shall direct the Trustee,
in
writing, as to investment of amounts on deposit therein. The Class C
Certificateholders shall be liable for any losses incurred on such investments.
In the absence of written instructions from the Class C 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 Section 5.01(g).
(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 C Certificateholder and as having
received the amount of the principal payment from the Class C 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).
|
SECTION
5.10.
|
Yield
Maintenance Agreement; Yield Maintenance Trust; Yield Maintenance
Trust
Account.
|
On
or
prior to the Closing Date, the Yield Maintenance Administrator, pursuant to
the
Yield Maintenance Allocation Agreement, shall enter into the Yield Maintenance
Agreement. The Yield Maintenance Administrator shall perform the duties as
set
forth in the Yield Maintenance Agreement and Yield Maintenance Allocation
Agreement.
Pursuant
to the Yield Maintenance Allocation Agreement, the Yield Maintenance
Administrator shall establish and maintain (i) the Yield Maintenance Trust
into
which it shall deposit the Yield Maintenance Agreement and (ii) the Yield
Maintenance Trust Account into which, on the day prior to each Distribution
Date, it shall deposit the Yield Maintenance Distributable Amount, if any,
paid
by the Yield Maintenance Provider pursuant to the Yield Maintenance Agreement.
Amounts on deposit in the Yield Maintenance Trust Account shall not be invested
and shall not be held in an interest-bearing account.
112
On
each
Distribution Date, after remitting the Yield Maintenance Payment Amount to
the
Trustee, any amounts remaining on deposit in the Yield Maintenance Trust Account
shall be distributed in accordance with Section 3(a)(ii) of the Yield
Maintenance Allocation Agreement.
It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Yield Maintenance Trust Account be disregarded
as an entity separate from the Holder of the Class C Certificates unless and
until the date when either (a) there is more than one Class C Certificateholder
or (b) any Class of Certificates in addition to the Class C Certificates is
recharacterized as an equity interest in the Yield Maintenance Trust Account
for
federal income tax purposes, in which case it is the intention of the parties
hereto that, for federal and state income and state and local franchise tax
purposes, the Yield Maintenance Trust Account be treated as a partnership.
The
Yield Maintenance Trust Account will be an “outside reserve fund” within the
meaning of Treasury Regulation Section 1.860G-2(h). Upon the termination of
the
Trust Fund, or the payment in full of the Offered Certificates, all amounts
remaining on deposit in the Yield Maintenance Trust Account shall be distributed
to the Class C Certificateholders or their designees. The Yield Maintenance
Trust Account shall not be part of the Trust Fund or of any REMIC and any
payments to the Holders of the Offered Certificates to pay certain interest
shortfalls will not be payments with respect to a “regular interest” in a REMIC
within the meaning of Code Section 860(G)(a)(1).
The
Yield
Maintenance Administrator shall terminate the Yield Maintenance Agreement upon
the occurrence of an event of default or termination event under the Yield
Maintenance Agreement of which the Yield Maintenance Administrator has actual
knowledge. In the event that the Yield Maintenance Agreement is canceled or
otherwise terminated for any reason (other than the exhaustion of the interest
rate protection provided thereby), the Yield Maintenance Administrator shall,
at
the direction of Certificateholders evidencing Voting Rights not less than
50%
of the Offered Certificates, and to the extent a replacement contract is
available (from a counterparty designated by the Depositor and acceptable to
Certificateholders evidencing Voting Rights not less than 50% of the Offered
Certificates), execute a replacement contract comparable to the 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 Yield Maintenance 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.
Upon
the
earlier of the Distribution Date in April 2017 and the termination of the Trust
Fund, the Yield Maintenance Agreement shall be terminated.
By
accepting a Class C Certificate, each Class C Certificateholder hereby agrees
to
direct the Yield Maintenance Administrator, and the Yield Maintenance
Administrator is hereby directed, to deposit into the Yield Maintenance Trust
Account the amounts described above.
|
SECTION
5.11.
|
Yield
Maintenance Account; Collateral
Account.
|
The
Trustee is hereby directed to establish and maintain with itself, a separate,
segregated account titled “Yield Maintenance Account, Xxxxx Fargo Bank, N.A., as
Trustee, in trust for the registered Holders of HarborView Mortgage Loan Trust
Mortgage Loan Pass-Through Certificates, Series 2007-3” (the “Yield Maintenance
Account”) for the benefit of the LIBOR Certificates and a separate, segregated
account titled “Collateral Account, Xxxxx Fargo Bank, N.A., as Trustee, in trust
for the registered Holders of HarborView Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-3” (the “Collateral Account”) for the
benefit of the LIBOR Certificates. Each of the Yield Maintenance Account and
the
Collateral 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 Trustee held
pursuant to this Agreement. Amounts on deposit in the Yield Maintenance Account
shall not be invested and shall not be held in an interest-bearing account.
In
the absence of written instructions from the Yield Maintenance Provider (or
its
credit support provider) as to investment of funds on deposit in the Collateral
Account, such funds shall be invested in the Xxxxx Fargo Advantage Prime Money
Market Fund or comparable investment vehicle.
113
On
each
Distribution Date, the Yield Maintenance Administrator shall remit the Yield
Maintenance Payment Amount to the Trustee for deposit into the Yield Maintenance
Account for distribution by the Trustee pursuant to the priorities set forth
in
Section 5.01(h).
If
the
Seller or its affiliate is the Holder of an Offered Certificate or a Class
B-9
Certificate, the Seller or its affiliate shall remit to the Trustee the portion
of Yield Maintenance Distributable Amount received by the Holder of such
Certificate on any Distribution Date, and the Trustee shall remit such amounts
to the Yield Maintenance Provider. For purposes of this Agreement, the Trustee
shall have no duty to confirm that each amount received by it from the Seller
or
its affiliate with respect to the preceding sentence is the correct
amount.
The
Yield
Maintenance Administrator and the Trustee shall terminate the Yield Maintenance
Agreement upon the occurrence of an event of default or termination event under
the Yield Maintenance Agreement of which a Responsible Officer of the Trustee
has actual knowledge. In the event that the Yield Maintenance Agreement is
terminated for any reason (other than the exhaustion of the interest rate
protection provided thereby), the Trustee shall, at the direction of
Certificateholders evidencing Voting Rights not less than 50% of the Offered
Certificates, and to the extent a replacement contract is available (from a
counterparty designated by the Depositor and acceptable to Certificateholders
evidencing Voting Rights not less than 50% of the Offered Certificates), direct
the Yield Maintenance Administrator to execute a replacement contract comparable
to the 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 Yield Maintenance 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.
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 in accordance with the requirements of the credit support
annex. 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. If directed by the Yield Maintenance Provider,
the
Trustee shall invest funds posted by the Yield Maintenance Provider in Permitted
Investments described in clause ii of Permitted Investments , pursuant to
such direction from the Yield Maintenance Provider. Absent
specific direction from the Yield Maintenance Provider, funds posted by the
Yield Maintenance Provider shall remain uninvested. 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(h). 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.
114
Upon
the
earlier of the Distribution Date in April 2017 and the termination of the Trust
Fund, the Yield Maintenance Account shall be terminated. Upon the earlier of
the
Distribution Date in April 2017 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 Trustee, on behalf of the Yield Maintenance Trust,
shall (upon a Responsible Officer of the Trustee 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 Trustee, on behalf of the Yield Maintenance Trust, shall (upon
a
Responsible Officer of the Trustee 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.
115
ARTICLE
VI
THE
CERTIFICATES
|
SECTION
6.01.
|
The
Certificates.
|
The
Certificates shall be substantially in the form annexed hereto as Exhibit A
through D. Each of the Certificates shall, on original issue, be executed by
the
Trustee 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, in the case of the 1A-1A, Class 2A-1A, Class
2A-1B, Class 2A-1C, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class
B-6, Class B-7, Class B-8 and Class B-9 Certificates; provided,
however,
that
the Offered Certificates shall only be sold to initial investors in minimum
total investment amounts of $100,000. The Class C and 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 ES Certificates shall be issued
in
a minimum Percentage Interest of 1% and in integral percentage of multiples
of
1% in excess thereof. The Class R Certificates are issuable only in a Percentage
Interest of 100%.
The
Certificates shall be executed on behalf of the Trust Fund by manual or
facsimile signature on behalf of the Trustee 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 Trustee 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 Trustee 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 Senior Certificates and the Subordinate
Certificates shall be Book-Entry Certificates. The Residual Certificates shall
be Physical Certificates.
The
Class
C and 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 Exhibits C-1 or C-2, as applicable, or (ii)
outside the United States in reliance on Regulation S under the Securities
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 Exhibits C-1 or C-2, as applicable, which
shall be registered in the name Greenwich Capital Markets, Inc., duly executed
by the Trustee and authenticated by the Certificate Registrar as hereinafter
provided. The aggregate principal amounts of the Class C and 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.
116
The
Class
R and Class ES Certificates shall be offered and sold only to Qualified
Institutional Buyers, and shall be issued initially in the form of a single
Restricted Global Security with the applicable legends set forth in Exhibit
C-3
hereto, which shall be registered in the name of Greenwich Capital Markets,
Inc., duly executed by the Trustee and authenticated by 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 Trustee is hereby
appointed, and the Trustee hereby accepts its appointment as, initial
Certificate Registrar, 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 Trustee on behalf of the Trust Fund 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
Trustee shall execute on behalf of the Trust Fund, 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.
(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
Trustee 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, any
NIMS Insurer, 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.
117
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 Trustee shall at the Seller’s expense execute on behalf of the Trust Fund
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 shall notify any NIMS Insurer of the
availability of Definitive Certificates and the Trustee, the Certificate
Registrar, the Paying Agent and the Depositor shall recognize the Holders of
the
Definitive Certificates as Certificateholders hereunder.
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, 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 Servicer, any NIMS Insurer, the Depositor or the Trust Fund,
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, any NIMS Insurer, the Servicer 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.
118
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).
(d) No
transfer, sale, pledge or other disposition of any Private Certificate, other
than a Private Certificate (other than the Residual 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 Securities
Act,
and any applicable state securities laws or is made in accordance with the
Securities Act and laws. Any Private Certificates sold to an “accredited
investor” under Rule 501(a)(1), (2), (3) or (7) under the Securities Act shall
be issued only in the form of one or more Definitive Certificates and the
records of the Certificate Registrar and 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 Securities Act, or (B) such transfer
is made to an “accredited investor” under Rule 501(c)(1), (2), (3) or (7) under
the Securities 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 Securities Act or
is
being made pursuant to the Securities Act, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Certificate Registrar 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 Fund, the Trustee, the Certificate
Registrar 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 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.
119
In
the
case of a Private 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 Private Certificate that is also a
Book-Entry Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in such Certificate).
None
of
the Depositor, the Seller, the Certificate Registrar or the Trustee is obligated
to register or qualify the Private Certificates under the Securities 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 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 Trust 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 Trust 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 Trust 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 Trust 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.
If
any
ERISA-Restricted Trust 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 Trust 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.
120
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 Trust 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 or Private Placement Memorandum, as applicable, and
this Agreement.
(e) Each
Person who has or who acquires any Ownership Interest in a 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
a Residual Certificate are expressly subject to the following
provisions:
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee who acquires such Ownership Interest in a
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 a Residual Certificate may be registered on the Closing
Date and no Ownership Interest in a Residual Certificate may thereafter be
transferred, and the Certificate Registrar shall not register the Transfer
of a
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 a Residual
Certificate in the form attached hereto as Exhibit L.
(iii) In
connection with any proposed transfer of any Ownership Interest in a 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.
121
(iv) Any
attempted or purported Transfer of any Ownership Interest in a 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
a
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
a
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.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee 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.
122
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 and the Servicer, 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 the 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
the
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 J-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.
123
(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 J-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 or are to non-U.S. Persons, or otherwise
comply 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.
(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).
124
(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 Depositor, any NIMS Insurer, 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 Trustee shall execute on behalf of the Trust Fund 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, any NIMS
Insurer and any agent of the Depositor, the Trustee, the Certificate Registrar,
the Paying Agent or any NIMS Insurer 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 Fund, the
Depositor, the Trustee, the Certificate Registrar, the Paying Agent, any NIMS
Insurer or any agent of any of them shall be affected by notice to the
contrary.
|
SECTION
6.05.
|
Appointment
of Paying Agent.
|
(a) The
Trustee, subject to the consent of any NIMS Insurer (such consent not to be
unreasonably withheld), may appoint a Paying Agent (which may be the Trustee)
for the purpose of making distributions to Certificateholders hereunder. The
Trustee hereby appoints itself 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.
125
(b) The
Trustee, 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.
|
Event
of Default.
|
(a) If
an
Event of Default described in the Servicing Agreement shall occur and be
continuing, 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 may, and at the written direction of the Holders of Certificates
evidencing Voting Rights aggregating not less than 51%, shall, by notice then
given in writing to the Servicer, terminate all of the rights and obligations
of
the Servicer as servicer under this Agreement. Any such notice to the Servicer
shall also be given to the Rating Agencies, the Depositor, the Credit Risk
Manager and the Seller. The Trustee, upon a Responsible Officer having actual
knowledge of such default, shall deliver a written notice to the Servicer of
the
Event of Default on any Servicer Remittance Date on which the Servicer fails
to
make any deposit or payment required pursuant to the Servicing Agreement
(including but not limited to Advances to the extent required pursuant to the
Servicing Agreement). Pursuant to the Servicing Agreement, on or after the
receipt by the Servicer (and by the Trustee if such notice is given by the
Holders) of such written notice, all authority and power of the Servicer under
the Servicing Agreement, with respect to 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 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.
|
SECTION
7.02.
|
Trustee
to Act.
|
(a) From
and
after the date the Servicer (and the Trustee, if notice is sent by the Holders)
receives a notice of termination pursuant to Section 7.01, the Trustee
immediately shall be the successor in all respects to the Servicer in its
capacity as servicer under the Servicing 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 Servicer by the terms
and
provisions hereof arising on and after its succession, including the immediate
obligation to make Advances. As compensation therefor, the Trustee shall be
entitled to such compensation as the Servicer would have been entitled to under
the Servicing Agreement if no such notice of termination had been given.
Notwithstanding the above, (i) if the Trustee is unwilling to act as successor
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 Servicer under the Servicing Agreement in the assumption of
all
or any part of the responsibilities, duties or liabilities of the Servicer
under
the Servicing Agreement; provided,
that
the
appointment of any such successor 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
such Rating Agency. Pending appointment of a successor to the Servicer under
the
Servicing Agreement, 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 Servicer would otherwise have received hereunder. Except
with respect to the making of Advances the defaulting Servicer was required
to
make but did not make, the successor Servicer, including the Trustee in such
capacity, shall not be liable for any acts or omissions of the predecessor
Servicer or for any breach by such Servicer of any of its representations or
warranties made by it in the Servicing Agreement 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.
126
(b) Any
successor, including the Trustee, to the Servicer under the Servicing Agreement
shall during the term of its service as Servicer continue to service and
administer the Mortgage Loans for the benefit of Certificateholders pursuant
to
the terms and conditions of the Servicing Agreement, and maintain in force
a
policy or policies of insurance covering errors and omissions in the performance
of its obligations as Servicer under the Servicing Agreement.
(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 Servicer to
act
as successor Servicer under this Agreement and the transactions set forth or
provided for herein.
(d) The
Trustee shall be entitled to be reimbursed by the Trust Fund (pursuant to
Section 4.03(a)(xii)), in the event that the Servicer does not reimburse the
Trustee under the Servicing Agreement, for all costs associated with the
transfer of servicing from the predecessor Servicer, including, without
limitation, any costs or expenses associated with the termination of the
predecessor Servicer, the appointment of a successor servicer, the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Trustee or any successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the Trustee or successor servicer to service the Mortgage Loans property
and effectively.
|
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 the 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.
127
|
SECTION
7.04.
|
Notification
to Certificateholders.
|
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII, the Trustee shall give prompt written notice thereof to the
Certificateholders at their respective addresses appearing in the Certificate
Register, to each Rating Agency, to any NIMS Insurer.
(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, any NIMS
Insurer notice of such occurrence unless such Event of Default shall have been
waived or cured.
ARTICLE
VIII
THE
TRUSTEE
|
SECTION
8.01.
|
Duties
of the Trustee.
|
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, undertakes 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.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee, 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
the Trustee will not 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 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, the Trustee shall provide notice
thereof to the Certificateholders and any NIMS Insurer 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 or any NIMS Insurer.
On
each
Distribution Date, the Trustee, as Paying Agent, shall make monthly
distributions the Certificateholders from funds in the Distribution Account,
the
Basis Risk Reserve Fund, the Yield Maintenance Account and the Final Maturity
Reserve Account, as applicable, in each case as provided in Sections 5.01,
5.07,
5.09 and 5.10 herein.
128
No
provision of this Agreement shall be construed to relieve the Trustee 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
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not 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
and, in the absence of bad faith on the part of the Trustee, the Trustee 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 and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer of the Trustee unless it shall be proved that the Trustee
was negligent in ascertaining or investigating the facts related
thereto;
(iii) the
Trustee shall not 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 any NIMS Insurer or 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 under this Agreement;
(iv) the
Trustee shall not be responsible for any act or omission of the Servicer (except
in its capacity as successor servicer to the extent provided in Section
7.02(a)), the Depositor, the Seller or the Custodian; and
(v) the
Trustee shall not be charged with knowledge of any Event of Default unless
a
Responsible Officer of the Trustee at the Corporate Trust Office obtains actual
knowledge of such failure or the Trustee receives written notice at the
Corporate Trust Office of such Event of Default.
The
Trustee shall not appoint any Subcontractor without receiving the prior written
consent of the Depositor to appoint any Subcontractor, which consent shall
not
be unreasonably withheld. If the Trustee appoints a Subcontractor without
receiving such prior written consent, the Trustee shall be deemed to be in
breach of this Agreement and may be removed by the Depositor.
The
Trustee shall promptly notify the Depositor and the Sponsor of knowledge thereof
(i) of any legal proceedings pending against the Trustee of the type described
in Item 1117 (§ 229.1117) of Regulation AB and (ii) if the Trustee shall become
(but only to the extent not previously disclosed) at any time an affiliate
of
any of the responsible parties listed on Exhibit O. On or before March 1 of
each
year, the Depositor shall distribute the information on Exhibit O to the
Trustee.
129
The
Trustee shall not 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 to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Servicer under the Servicing 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 Servicer in accordance with the terms of the
Servicing Agreement.
|
SECTION
8.02.
|
Certain
Matters Affecting the Trustee.
|
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee 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 may prescribe;
(ii) the
Trustee 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) the
Trustee shall not 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 or any NIMS Insurer pursuant to the provisions
of this Agreement, unless such Certificateholders or any NIMS Insurer shall
have
offered to the Trustee 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;
(iv) the
Trustee shall not 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) 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 not 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 any NIMS Insurer or the Majority Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee 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 not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense, liability or payment of such
estimated expenses from any NIMS Insurer or the Certificateholders, as
applicable, as a condition to such proceeding. If the Servicer fails to
reimburse the Trustee in respect of the reasonable expense of every such
examination relating to the Servicer, the Trustee shall be reimbursed by the
Trust Fund;
130
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as the Servicer pursuant to Section
7.02 hereof and thereupon only for the acts or omissions of the Trustee as
a
successor Servicer;
(vii) the
Trustee 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 in good faith;
(viii) 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 such
act;
and
(ix) in
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee is required to obtain, verify and record certain information relating
to
certain individuals and certain entities which maintain a business relationship
with the Trustee. Accordingly, each of the parties agrees to provide the Trustee
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
to comply with Applicable Law.
It
is
expressly understood and agreed that the Trustee shall be entitled to all the
rights, protections, immunities and indemnities set forth herein with respect
to
the Reconstitution Agreement and the Servicing Agreement, and any actions taken
or omitted by the Trustee pursuant to the terms thereof, as if such rights,
protections, immunities and indemnities were specifically set forth
therein.
|
SECTION
8.03.
|
Trustee
Not Liable for Certificates or Mortgage
Loans.
|
The
recitals contained herein and in the Certificates (other than the authentication
and countersignature on the Certificates) shall be taken as the statements
of
the Depositor or the Seller, and the Trustee assumes no responsibility for
the
correctness of the same. The Trustee makes no representations or warranties
as
to the validity or sufficiency of this Agreement or of the Certificates (other
than the countersignature and authentication on the Certificates) or of any
Mortgage Loan or related document or of MERS or the MERS System. The Trustee
shall not 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 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 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; the acts or omissions of
the
Servicer (other than if the Trustee shall assume the duties of the Servicer
pursuant to Section 7.02 hereof, and then only for the acts or omissions of
the
Trustee as the successor Servicer); or any action by the Trustee taken at the
instruction of the Servicer (other than if the Trustee shall assume the duties
of the Servicer pursuant to Section 7.02 hereof, and then only for the actions
of the Trustee as the successor 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.
131
|
SECTION
8.04.
|
Trustee
and Custodian May Own
Certificates.
|
The
Trustee and the Custodian, in their respective individual capacities, or in
any
capacity other than as Trustee or Custodian hereunder, may become the owner
or
pledgee of any Certificates with the same rights they would have if they were
not Trustee or Custodian, as applicable, and may otherwise deal with the parties
hereto.
|
SECTION
8.05.
|
Trustee’s
Fees and Expenses.
|
The
Trustee shall be compensated by the Trustee Fee as compensation for its services
hereunder. In addition, the Trustee will be entitled to recover from the
Distribution Account pursuant to Section 4.03(a) all reasonable out-of-pocket
expenses, disbursements and advances, including without limitation, in
connection with any filing that the Trustee is required to make under Section
3.07 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 in the performance of its duties or the
administration of the trusts hereunder (including, but not limited to, the
performance of its duties under Section 2.03 hereof) (including the reasonable
compensation, expenses and disbursements of its counsel) or incurred or made
by
the Trustee under each of the Yield Maintenance Allocation Agreement and the
Yield Maintenance Agreement (including the reasonable compensation, expenses
and
disbursements of its counsel) 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 Certificateholders or the Trust Fund hereunder or thereunder. If
funds in the Distribution Account are insufficient therefor, the Trustee 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.
132
|
SECTION
8.06.
|
Eligibility
Requirements for Trustee.
|
The
Trustee hereunder shall at all times (i) be an institution whose accounts are
insured by the FDIC, (ii) 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, 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 and (iii) not be an Affiliate of any Servicer. 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 shall
cease
to be eligible in accordance with the provisions of this Section 8.06, the
Trustee shall resign immediately in the manner and with the effect specified
in
Section 8.07 hereof.
|
SECTION
8.07.
|
Resignation
or Removal of Trustee.
|
The
Trustee (including the Trustee as Certificate Registrar) may at any time resign
and be discharged from the obligations hereby created by giving written notice
thereof to the Depositor, the Seller, any NIMS Insurer 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
and is reasonably acceptable to any NIMS Insurer or, in the case of notice
of
resignation of the Trustee (in consultation with the Depositor) shall promptly
appoint a successor Trustee that meets the requirements in Section 8.06 and
is
reasonably acceptable to any NIMS Insurer by written instrument, with a copy
of
such written instrument delivered to (i) the resigning Trustee, (ii) the
successor Trustee and (iii) any NIMS Insurer. If no successor Trustee shall
have
been so appointed and having accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor
Trustee.
If
at any
time the Trustee (a) shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof shall fail to resign after written request
therefor by the Depositor or any NIMS Insurer or if at any time the Trustee,
(b)
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent,
or
a receiver of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation, (c)
shall fail to deliver to the Depositor and the Sponsor the assessment of
compliance or an attestation report required under Section 3.04 hereto within
15
calendar days of March 1 of each calendar year in which Exchange Act reports
are
required or (d) shall fail to file any Form 10-D or Form 10-K when due pursuant
to Section 3.07 hereof (other than as a result of the failure of the Depositor
to sign and return to the Trustee such Form 10-D or Form 10-K within the time
limitations of Section 3.07 or any other party to deliver information in a
timely manner as set forth in Section 3.07), then the Depositor or any NIMS
insurer may immediately remove the Trustee. If the Depositor removes the Trustee
under the authority of the immediately preceding sentence, the Depositor shall
promptly appoint a successor Trustee reasonably acceptable to the NIMS Insurer
and that meets the requirements of Section 8.06, by written instrument, with
a
copy of such written instrument delivered to (i) the Trustee so removed, (ii)
the successor Trustee and (iii) to any NIMS Insurer.
133
The
Majority Certificateholders (or any NIMS Insurer in the event of failure of
the
Trustee to perform its obligations hereunder) may at any time remove the Trustee
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 acceptable to the NIMS Insurer, in accordance with this
Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee, as provided
in Section 8.08 hereof. If the Trustee 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 shall also be reimbursed any outstanding and unpaid costs and
expenses.
|
SECTION
8.08.
|
Successor
Trustee.
|
Any
successor Trustee appointed as provided in Section 8.07 hereof shall execute,
acknowledge and deliver to the Depositor, any NIMS Insurer, the Seller and
its
predecessor Trustee, an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee, 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. The Depositor, the Seller and the predecessor Trustee 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 all such rights, powers, duties and obligations.
No
successor Trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 hereof and the appointment of such
successor Trustee shall not result in a downgrading of the Senior Certificates
by each Rating Agency, as evidenced by a letter from each Rating
Agency.
Upon
acceptance of appointment by a successor Trustee, as provided in this Section
8.08, the successor Trustee shall mail notice of such appointment hereunder
to
all Holders of Certificates at their addresses as shown in the Certificate
Register, to any NIMS Insurer and to each Rating Agency.
134
|
SECTION
8.09.
|
Merger
or Consolidation of Trustee.
|
Any
entity into which the Trustee 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 shall be a party, or any entity succeeding
to
the corporate trust business of the Trustee shall be the successor of the
Trustee 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, at the expense of the Trust Fund, execute and deliver
all instruments to appoint one or more Persons, approved by the Trustee and
any
NIMS Insurer to act as co-trustee or co-trustees, jointly with the Trustee,
or
separate trustee or separate trustees, 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 Depositor 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 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;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
135
(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 and any NIMS Insurer.
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 Trustee, not in its individual capacity but
solely as Trustee 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 Trustee 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.
(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.
136
|
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.
|
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, and at the direction of the Depositor shall, 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 initial custodian of the Mortgage Loans shall be Deutsche
Bank National Trust Company. Deutsche Bank National Trust Company shall be
compensated by the Trust Fund for its services as custodian as set forth in
a
separate agreement between the Trustee and the Custodian.
137
|
SECTION
8.17.
|
Indemnification.
|
The
Trustee and its respective directors, officers, employees and agents shall
be
entitled to indemnification from the Trust Fund incurred hereunder or under
or
with respect to any Certificate, the Servicing Agreement or under or pursuant
to
the Mortgage Loan Purchase Agreement, without negligence or willful misconduct
on the Trustee’s part, arising out of, or in connection with, the acceptance or
administration of the trusts created hereunder or in connection with the
performance of the Trustee’s duties hereunder including the costs and expenses
of defending themselves against any claim in connection with the exercise or
performance of any of their powers or duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor written
notice thereof promptly after the Trustee shall have knowledge thereof;
and
(ii) notwithstanding
anything to the contrary in this Section 8.17, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, which consent shall not be unreasonably
withheld.
The
provisions of this Section 8.17 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
|
SECTION
8.18.
|
Limitation
of Liability of Trustee and Yield Maintenance Administrator;
Indemnification.
|
The
Trustee 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 and the Yield Maintenance Allocation Agreement. The Yield Maintenance
Administrator shall not have any liability for any failure or delay in payments
to the Trustee which are required under the Yield Maintenance Allocation
Agreement where such failure or delay is due to the failure or delay of the
Yield Maintenance Provider in making such payment to the Yield Maintenance
Administrator pursuant to the Yield Maintenance Agreement. In addition,
notwithstanding anything to the contrary in the Yield Maintenance Agreement,
the
Yield Maintenance 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 Yield Maintenance Administrator by Greenwich Capital
Markets, Inc. The Trustee and the Yield Maintenance Administrator and their
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 Trustee or the Yield
Maintenance Administrator of its respective duties or obligations under the
Yield Maintenance Allocation Agreement or the Yield Maintenance Agreement except
to the extent that the same is due to the Yield Maintenance Administrator’s
negligence, willful misconduct or fraud.
138
|
SECTION
8.19.
|
Yield
Maintenance Administrator’s Fees and
Expenses.
|
The
Yield
Maintenance Administrator’s fees under the Yield Maintenance Allocation
Agreement and the Yield Maintenance Agreement shall be paid from a portion
of
the Trustee Fee. In addition, the Yield Maintenance Administrator will be
entitled to recover from the Distribution Account pursuant to Section 4.03(a)
all reasonable out-of-pocket expenses in the performance of its duties under
the
Yield Maintenance Allocation Agreement or the Yield Maintenance Agreement or
the
administration of the Yield Maintenance Trust (including the reasonable
compensation, expenses and disbursements of its counsel) except any such
expense, disbursement or advance as may arise from its negligence or intentional
misconduct. If funds in the Distribution Account are insufficient therefor,
the
Yield Maintenance Administrator shall recover such expenses from future
collections on the Mortgage Loans or as otherwise agreed by the
Certificateholders.
|
SECTION
8.20.
|
Resignation
or Removal of the Yield Maintenance
Administrator.
|
The
Yield
Maintenance Administrator may at any time resign and be discharged from its
duties and obligations under the Yield Maintenance Allocation Agreement by
giving written notice thereof to the Depositor, the Seller, GCFP, any NIMS
Insurer, the Trustee and each Rating Agency. Upon receiving such notice of
resignation of the Yield Maintenance Administrator, GCFP shall promptly appoint
a successor Yield Maintenance Administrator that is acceptable to any NIMS
Insurer by written instrument, in triplicate, one copy of which instrument
shall
be delivered to each of (i) the resigning Yield Maintenance Administrator,
(ii)
the successor Yield Maintenance Administrator and (iii) any NIMS Insurer. If
no
successor Yield Maintenance Administrator shall have been so appointed and
having accepted appointment within 30 days after the giving of such notice
of
resignation, the resigning Yield Maintenance Administrator may petition any
court of competent jurisdiction for the appointment of a successor Yield
Maintenance Administrator.
GCFP
(or
any NIMS Insurer in the event of failure of the Yield Maintenance Administrator
to perform its obligations hereunder) may at any time remove the Yield
Maintenance Administrator by written instrument or instruments delivered to
GCFP, the Depositor, the Yield Maintenance Administrator and the Trustee; GCFP
shall thereupon use its best efforts to appoint a successor Yield Maintenance
Administrator acceptable to the NIMS Insurer, in accordance with this
Section.
Any
resignation or removal of the Yield Maintenance Administrator and appointment
of
a successor Yield Maintenance Administrator, pursuant to any of the provisions
of this Section 8.20 shall not become effective until acceptance of appointment
by the successor Yield Maintenance Administrator. If the Yield Maintenance
Administrator is removed pursuant to this Section 8.20, it shall be reimbursed
any outstanding and unpaid fees and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Trustee resigns
or is removed as Trustee hereunder, the Yield Maintenance Administrator shall
have the right to resign immediately as Yield Maintenance Administrator by
giving written notice to GCFP, the Depositor and the Trustee, with a copy to
each Rating Agency and any NIMS Insurer. Any Person appointed as successor
Trustee pursuant to Section 8.07 shall also be required to serve as successor
Yield Maintenance Administrator under the Yield Maintenance Agreement and the
Yield Maintenance Allocation Agreement.
139
|
SECTION
8.21.
|
Closing
Opinion of Counsel.
|
On
or
before the Closing Date, the Trustee shall cause to be delivered to the
Depositor, the Seller 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 Trustee and
the
enforceability thereof.
ARTICLE
IX
REMIC
ADMINISTRATION
|
SECTION
9.01.
|
REMIC
Administration.
|
(a) As
set
forth in the Preliminary Statement to this Agreement, two REMIC elections shall
be made by the Trust Fund. The Trustee shall sign and 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 Trustee 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 Seller 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 Trustee in
fulfilling its duties hereunder (including the Trustee’s duties as tax return
preparer).
(d) The
Trustee 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 Trustee.
Notwithstanding the foregoing, the Trustee 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.
If
one or more Classes of Regular Certificates are issued to one Person (which
intends to continue to hold the Regular Certificates indefinitely and, in any
case, for at least 30 days), the Trustee, 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
Trustee.
140
(e) The
Trustee 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 Trustee, 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 a 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 Trustee, however, shall have no information or other
tax reporting obligations with respect to the Final Maturity Reserve Trust.
In
addition, the Yield Maintenance Administrator shall have no information or
other
tax reporting obligations with respect to the Yield Maintenance
Trust.
(f) The
Trustee (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
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
any NIMS Insurer 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 NIMS Insurer 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
Trustee or any NIMS Insurer 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 Trustee 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.
141
(h) The
Trustee 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) The
Trustee shall not enter into any arrangement by which any REMIC created
hereunder will receive a fee or other compensation for services.
(k) The
Trustee shall treat each of the Basis Risk Reserve Fund, Capitalized Interest
Account, Yield Maintenance Trust, the Yield Maintenance Trust Account and the
Yield Maintenance Account as outside reserve funds within the meaning of
Treasury Regulation Section 1.860G-2(h), and not as assets of any REMIC. The
Holders of the Class C Certificates are the owners of each such outside reserve
fund other than the Capitalized Interest Account and the Seller is the owner
of
the Capitalized Interest Account.
(l) The
Trustee 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 C 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.
(m) The
Trustee 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
C
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 C Certificates) shall be treated
for federal income tax purposes as payments made by the Class C
Certificateholder in exchange for an interest in the Certificates then owned
by
such beneficial owners.
(n) For
federal income tax purposes, upon any sale of the property held by the Trust
Fund pursuant to Section 10.01(a), any NIM Redemption Amount and any Premium
Proceeds paid by the 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 Servicer to the Holder of the Class C Certificates pursuant to a cash
settled call option with respect to the property held by the Trust
Fund.
142
|
SECTION
9.02.
|
Prohibited
Transactions and Activities.
|
None
of
the Depositor, the 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, the Trustee and any
NIMS
Insurer 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.
ARTICLE
X
TERMINATION
|
SECTION
10.01.
|
Termination.
|
(a) The
respective obligations and responsibilities of the Seller, the Depositor and
the
Trustee created hereby (other than the obligation of the Trustee, as Paying
Agent, to make certain payments to Certificateholders after the final
Distribution Date and the obligation of the Servicer to send certain notices
as
hereinafter set forth) shall terminate upon notice to the Trustee 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 10% of the Cut-off Date Collateral Balance (the
“Call Option Date”), the Servicer (in such context, the “Terminator”), with the
prior written consent of the NIMS Insurer (which consent shall not be
unreasonably withheld) or at the direction of the NIMS Insurer 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 (w) the Terminator, (x) the NIMS Insurer, (y) the Holders of a majority
in
Percentage Interest of the Class C Certificates and (z) if the Holders of the
LIBOR 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 Servicing Fees allocable to such Mortgage Loans and REO Properties and
all amounts, if any, then due and owing to the Trustee 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; and, provided,
further,
that if
there are any NIM Notes outstanding, the Servicer may only exercise its option
after receiving the prior written consent of the holders of such NIM Notes
and,
if such consent is given, the Termination Price shall also include an amount
equal to the sum of (1) any accrued interest on the NIM Notes, (2) the unpaid
principal balance of any such NIM Notes and (3) any other reimbursable expenses
owed by the issuer of the NIM Notes (the “NIM Redemption Amount”). If the fair
market value of the Mortgage Loans and REO Properties shall be required to
be
made and agreed upon by the Servicer, if it is Terminator, and the Holders
of a
majority of Percentage Interest of the Class C 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
Servicer, if it is the Terminator, the Holders of a majority in Percentage
Interest of the Class C 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 C 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. No such purchase by the Terminator will be permitted
without the consent of the NIMS Insurer.
143
If
the
NIMS Insurer directs the Terminator to exercise its option, then (i) the NIMS
Insurer shall remit the Termination Price in immediately available funds to
the
Servicer at least three Business Days prior to the applicable Distribution
Date
and, upon receipt of such funds from the NIMS Insurer, the Servicer shall
promptly deposit such funds in the Distribution Account and (ii) upon the
termination of the Trust Fund, the Trustee will transfer the property of the
Trust Fund to the NIMS Insurer. The NIMS Insurer shall be obligated to reimburse
the Servicer for its reasonable out-of-pocket expenses incurred in connection
with its termination of the Trust Fund at the direction of the NIMS Insurer
and
shall indemnify and hold harmless the Servicer for all losses, liabilities
or
expenses resulting from any claims directly resulting from or relating to the
Terminator’s termination of the Trust Fund at the direction of the NIMS Insurer,
except to the extent such losses, liabilities or expenses arise out of or result
from the Servicer’s negligence, bad faith or willful misconduct.
In
connection with any such purchase pursuant to the preceding paragraph, the
Servicer shall deposit in the Distribution Account all amounts then on deposit
in the Servicing Account, which deposit shall be deemed to have occurred
immediately preceding such purchase.
144
Notwithstanding
anything provided herein to the contrary, upon the exercise of the Terminator
of
its Call Option, the Servicing Rights Owner shall retain any and all related
Servicing Rights with respect to any SRO Mortgage Loans.
(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 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
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 Trustee shall terminate the Distribution
Account and any other account or fund maintained with respect to the
Certificates, subject to the Trustee’s obligation hereunder to hold all amounts
payable to Certificateholders in trust without interest pending such
payment.
(c) Upon
presentation and surrender of the Certificates, the Trustee, 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; provided,
however,
that
with respect to amounts that would otherwise be distributed to the Class R
Certificates (i) with respect to the Group 1 Mortgage Loans on the final
Distribution Date, such amounts, if any, shall be distributed to the Class
2A-1A, Class 2A-1B and Class 2A-1C Certificates, pro
rata
up to
the amount by which the aggregate Class Principal Balance of the classes of
Senior Certificates related to Loan Group 2 on such date is greater than the
Loan Group Balance of the related Group 2 Mortgage Loans for such Distribution
Date and (ii) with respect to the Group 2 Mortgage Loans on the final
Distribution Date, such amounts, if any, shall be distributed to the Class
1A-1A
Certificates, pro
rata
up to
the amount by which the aggregate Class Principal Balance of such class of
Senior Certificates related to Loan Group 1 on such date is greater than the
Loan Group Balance of the related Group 1 Mortgage Loans 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
Trustee 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 Trustee 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 Servicer shall be entitled
to all unclaimed funds and other assets which remain subject hereto, and the
Trustee upon transfer of such funds shall be discharged of any responsibility
for such funds, and the Certificateholders shall look to the Servicer for
payment.
145
|
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 shall sell any remaining assets of the Trust Fund for cash and, within
90 days of such sale, 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
Trustee 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 obtained at the expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorney in fact to undertake the foregoing steps.
|
SECTION
10.03.
|
NIMS
Insurer Optional Purchase Right of Distressed Mortgage
Loans.
|
The
NIMS
Insurer, if any, may purchase any Distressed Mortgage Loan for a purchase price
equal to the outstanding principal balance of such Mortgage Loan plus accrued
interest thereon to the date of purchase plus any unreimbursed Advances,
Servicing Advances or Servicing Fees allocable to such Distressed Mortgage
Loan.
Any such purchase shall be accomplished by the NIMS Insurer’s remittance of the
purchase price for the Distressed Mortgage Loan to the Trustee for deposit
into
the Distribution Account. The NIMS Insurer shall not use any procedure in
selecting Distressed Mortgage Loans to be purchased which would be materially
adverse to Certificateholders.
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.
146
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
|
SECTION
12.01.
|
Amendment.
|
This
Agreement may be amended from time to time by the Seller, the Depositor and
the
Trustee (with the consent of any NIMS Insurer) without the consent of the
Certificateholders and, with respect to any amendment that adversely affects
the
interest of any of the Credit Risk Manager, with the prior written consent
of
the Credit Risk Manager, (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, or (iv) to conform the terms
hereof to the description thereof provided in the Prospectus or the Private
Placement Memorandum; provided,
however,
that
any such action listed in clause (iii) above shall not adversely
affect in any material respect the interests of any Certificateholder;
provided,
further,
that
any such action listed in clause (iii) above shall be deemed not to adversely
affect in any material respect the interests of any Certificateholder, if
evidenced by either (i) written notice to the Depositor, the Seller, any
NIMS Insurer 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 Trustee and any NIMS Insurer.
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor and the Trustee with the consent of any NIMS Insurer, the Majority
Certificateholders and the Credit Risk Manager with respect to any amendment
that materially and adversely affects the interest of the Credit Risk Manager,
with the prior written consent of the Credit Risk Manager) 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 5.01(a) 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 the Rating Agency.
147
Notwithstanding
any provision of this Agreement to the contrary, each of the Trustee and the
NIMS Insurer shall not consent to any amendment to this Agreement unless they
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 the imposition of 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 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 Servicer, the NIMS Insurer 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 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.
|
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.
148
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, with the prior written
consent of any NIMS Insurer, 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 and no direction inconsistent with such written
request has been given the Trustee by such Certificateholder or any NIMS
Insurer. It is understood and intended, and expressly covenanted by each
Certificateholder with every other Certificateholder, any NIMS Insurer 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
the
rights of any NIMS Insurer, or to obtain or seek to obtain priority over or
preference to any other such Holder or any NIMS Insurer, 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,
the NIMS Insurer 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.
|
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 and the Trustee in writing
by the Seller, (b) in the case of the Trustee, for certificate transfer purposes
to the Corporate Trust Office or such other address or telecopy number as may
hereafter be furnished to the Depositor and the Seller in writing by the
Trustee, 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 Mortgage Loan Trust 2007-3) (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 and the Trustee in writing by the Depositor; and (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,
or such other address or telecopy number as may be furnished to the Depositor,
the Seller and the Trustee in writing by the Credit Risk Manager.
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 Trustee to the Depositor pursuant to Section 3.19 may be
delivered by the Trustee, 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 Trustee in writing by
the
Depositor.
149
|
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.
|
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.
|
Notice
to the Rating Agencies.
|
(a) The
Trustee shall be obligated to use its best reasonable efforts promptly to
provide notice to the Rating Agencies and any NIMS Insurer with respect to
each
of the following of which a Responsible Officer of the Trustee 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;
150
(iii) the
resignation or termination of the Servicer 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 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 Servicer:
(c) The
Trustee shall promptly furnish to each Rating Agency copies of the following,
unless such documents were made available on the Trustee’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
3.05
hereof; and
(iv) each
notice delivered to the Trustee pursuant to Section 5.05(b) hereof which relates
to the fact that the 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:
If
to
Moody’s, to:
Xxxxx’x
Investors Service, Inc.
00
Xxxxxx
Xxxxxx
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
Facsimile
number: (000) 000-0000
If
to Fitch, to:
Fitch
Ratings
Xxx
Xxxxx
Xxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Residential Mortgages
151
|
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.
The
Depositor shall promptly notify the Custodian and the Trustee in writing of
the
issuance of any Class of NIMS Securities and the identity of any related NIMS
Insurer. Thereafter, the NIMS Insurer shall be deemed a third-party beneficiary
of this Agreement to the same extent as if it were a party hereto, and shall
be
subject to and have the right to enforce the provisions of this Agreement so
long as the NIMS Securities remaining outstanding or the NIMS Insurer is owed
amounts in respect of its guarantee of payment of such NIMS Securities. Nothing
in this Agreement or in the Certificates, express or implied, shall give to
any
Person, other than the parties to this Agreement and their successors hereunder,
the Yield Maintenance Provider and its successors and assignees under the Yield
Maintenance Agreement, the Holders of the Certificates and the NIMS Insurer,
any
benefit or any legal or equitable right, power, 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. 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.
152
(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, any NIM Security Holder 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
Trustee 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 Trustee’s
possession). Any reasonable out-of-pocket expenses incurred by the Trustee
in
providing copies of such documents shall be reimbursed by the
Depositor.
|
SECTION
12.14.
|
Transfer
of Servicing.
|
The
Trustee shall not consent to or approve the assignment of the Servicing
Agreement or the servicing thereunder or the delegation of a substantial portion
of the Servicer’s rights or duties thereunder unless it shall have first
received a letter from each Rating Agency to the effect that such action on
the
part of the Servicer will not result in a qualification, withdrawal or downgrade
of the then-current rating of any of the Certificates. The Trustee (on behalf
of
the Trust Fund) shall be entitled to conclusively rely upon documents received
by it pursuant to clauses (i) and (ii) above in providing such written approval
to the Servicer and shall not be 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 with respect
to such approval.
|
SECTION
12.15.
|
Tax
Treatment of the Class ES
Certificates.
|
It
is the
intent of the parties hereto that the segregated pool of assets consisting
of
any collections in respect of the Class ES Distributable Amount payable to
the
Class ES Certificate
153
constitutes,
for federal income tax purposes, a grantor trust as described in Subpart E
of
Part I of Subchapter J of the Code and Treasury Regulation §301.7701-4(c)(2).
The Trustee shall prepare, sign and file, all of the tax returns in respect
of
such grantor trusts. The expenses of preparing and filing such returns shall
be
borne by the Trustee without any right of reimbursement therefor. The Trustee
shall comply with each such requirement by filing Form 1041.
154
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
Trustee
By:
/s/
Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
XXXXXXX
FIXED INCOME SERVICES INC.,
as
Credit
Risk Manager
By:
/s/
Xxxxx X.
Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: President and General Counsel
EXHIBIT
A
FORM
OF SENIOR 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 “AA-” 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. [For
the Class 1A-1A and Class 2A-1A Certificates Only.]
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.
[For the Class 1A-1A and Class 2A-1A Certificates
Only.]
A-1
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.] [For
the Class 2A-1B and Class 2A-1C Certificates Only.]
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.:
|
[
]
|
|
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
First
Distribution Date:
|
May
21, 2007
|
|
|
Initial
Certificate Principal
|
||
|
Balance
of this Certificate
|
||
|
(“Denomination”):
|
$[
]
|
|
|
Original
Class Certificate
|
||
|
Principal
Balance of this
|
||
|
Class:
|
$[
]
|
|
|
Percentage
Interest:
|
100%
|
|
|
Pass-Through
Rate:
|
Variable
|
|
|
CUSIP:
|
[41164U
[ ]
|
A-2
|
Class:
|
[[
]] A - [[ ]]
|
|
|
Assumed
Final Distribution Date:
|
May
2037
|
A-3
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
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 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 April 1, 2007 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as trustee (the “Trustee”). 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 Certificate 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
Certificate Registrar.
A-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-5
EXHIBIT
B
FORM
OF SUBORDINATE CERTIFICATE (Public)
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”).
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.
B-1
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
|
Certificate
No.:
|
1
|
|
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
First
Distribution Date:
|
May
21, 2007
|
|
|
Initial
Certificate Principal
|
||
|
Balance
of this Certificate
|
||
|
(“Denomination”):
|
$[
]
|
|
|
Original
Class Certificate
|
||
|
Principal
Balance of this
|
||
|
Class:
|
$[
]
|
|
|
Percentage
Interest:
|
100%
|
|
|
Pass-Through
Rate:
|
Variable
|
|
|
CUSIP:
|
411264U
[ ]
|
|
|
Class:
|
B-[
]
|
|
|
Assumed
Final Distribution Date:
|
May
2037
|
B-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
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 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 April 1, 2007 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as trustee (the “Trustee”). 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 Certificate 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
Certificate Registrar.
B-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-4
EXHIBIT
C-1
FORM
OF CLASS C 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 OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF 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 IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT IT ACQUIRED SUCH CERTIFICATE (I)(A) PURSUANT
TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT
OR
(B) AS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE 1933
ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN
RELIANCE ON RULE 144A, AND THAT (II) SUCH HOLDER IS NOT AN EMPLOYEE BENEFIT
PLAN
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED
(“ERISA”), OR A PLAN OR ARRANGEMENT SECTION 4975 OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE “CODE”), THE TRUSTEE OF ANY SUCH PLAN OR A PERSON ACTING
ON BEHALF OF ANY SUCH PLAN NOR A PERSON USING THE ASSETS OF ANY SUCH
PLAN.
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 OR
OTHER RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OR TO SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR ANY ENTITY DEEMED TO
HOLD THE PLAN ASSETS OF THE FOREGOING (COLLECTIVELY, A “PLAN”) NOR A PERSON
ACTING FOR, OR ON BEHALF OF, ANY SUCH PLAN 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 95-60 (“PTCE
95-60”) AND 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 A PLAN WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
C-1-1
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
|
Certificate
No.:
|
1
|
|
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
Initial
Certificate Principal
|
||
|
Balance
of this Certificate
|
||
|
(“Denomination”):
|
$[
]
|
|
|
Original
Class
|
||
|
Principal
Balance of this
|
||
|
Class:
|
$[
]
|
|
|
Percentage
Interest:
|
100%
|
|
|
Class:
|
C
|
C-1-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
Class
C
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 first lien mortgage loans (the “Mortgage Loans”) purchased from others
by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable as set forth herein and in the
pooling and servicing agreement dated as of April 1, 2007 (the “Agreement”)
among Greenwich Capital Acceptance, Inc., as depositor (the “Depositor”),
Greenwich Capital Financial Products, Inc., as seller (the “Seller”), Xxxxxxx
Fixed Income Services Inc., as credit risk manager and Xxxxx Fargo Bank, N.A.,
as trustee (the “Trustee”). 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 ACCEPTANCE, 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 Certificate Principal
Balance) in certain 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
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) 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.
C-1-3
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 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 Trustee 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 C Certificate in violation of the restrictions
mentioned above.
C-1-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-1-5
EXHIBIT
C-2
FORM
OF 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.
C-2-1
|
Certificate
No.:
|
1
|
|
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
First
Distribution Date:
|
May
21, 2007
|
|
|
Initial
Certificate Principal Balance of this Certificate:
|
$100
|
|
|
Original
Class Principal Balance of this Class:
|
$100
|
|
|
Percentage
Interest:
|
100%
|
|
|
Class:
|
P
|
C-2-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
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 first lien mortgage loans (the “Mortgage Loans”) purchased from others
by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable as set forth herein and in the
pooling and servicing agreement dated as of April 1, 2007 (the “Agreement”)
among Greenwich Capital Acceptance, Inc., as depositor (the “Depositor”),
Greenwich Capital Financial Products, Inc., as seller (the “Seller”), Xxxxxxx
Fixed Income Services Inc., as credit risk manager and Xxxxx Fargo Bank, N.A.,
as trustee (the “Trustee”). 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 ACCEPTANCE, 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 Certificate Principal
Balance) in certain 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
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) 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.
C-2-3
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 Trustee 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.
C-2-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-2-5
EXHIBIT
C-3
FORM
OF CLASS 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 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) 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 THE OPINION OF
COUNSEL SATISFACTORY TO THE CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL
BE
VOID AND OF NO EFFECT.
|
Certificate
No.:
|
1
|
|
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
Percentage
Interest:
|
100%
|
|
|
Class:
|
R
|
|
C-3-1
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
Class
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 first lien mortgage loans (the “Mortgage Loans”) purchased from others
by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable as set forth herein and in the
pooling and servicing agreement dated as of April 1, 2007 (the “Agreement”)
among Greenwich Capital Acceptance, Inc., as depositor (the “Depositor”),
Greenwich Capital Financial Products, Inc., as seller (the “Seller”), Xxxxxxx
Fixed Income Services Inc., as credit risk manager and Xxxxx Fargo Bank, N.A.,
as trustee (the “Trustee”). 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 ACCEPTANCE, 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 Certificate Principal
Balance) in certain 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
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
Trustee and 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
the Trustee, 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.
C-3-2
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 Trustee 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 R Certificate in violation of the restrictions
mentioned above.
C-3-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-3-4
EXHIBIT
C-4
CLASS
ES CERTIFICATE
THIS
CERTIFICATE DOES NOT EVIDENCE AN INTEREST IN ANY REMIC CREATED PURSUANT TO
THE
AGREEMENT REFERENCED HEREIN.
THIS
CERTIFICATE IS NOT ENTITLED TO DISTRIBUTIONS OF PRINCIPAL AND WILL NOT ACCRUE
INTEREST. 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.
C-4-1
THIS
CERTIFICATE MUST BE ACQUIRED BY A PROPOSED TRANSFEREE FOR ITS OWN ACCOUNT AND
NOT IN A CAPACITY AS TRUSTEE, NOMINEE, MIDDLEMAN, OR AGENT FOR ANY OTHER
PERSON.
|
Cut-Off
Date:
|
April
1, 2007
|
|
|
Certificate
No.:
|
1
|
|
|
Class:
|
ES
|
|
|
Percentage
Interest:
|
100%
|
C-4-2
HarborView
Mortgage Loan Trust 2007-3
Mortgage
Loan Pass-Through Certificates, Series 2007-3
Class
ES
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust 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, the Servicer 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 [_______________] 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 April 1, 2007 (the
“Agreement”) among Greenwich Capital Acceptance, Inc., as depositor (the
“Depositor”), Greenwich Capital Financial Products, Inc., as seller (the
“Seller”), Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as trustee (the “Trustee”). 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
Certificate Registrar.
C-4-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Dated:
April ___, 2007
XXXXX
FARGO BANK, N.A.,
not
in
its individual capacity,
but
solely as Trustee
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-4-4
EXHIBIT
D
FORM
OF REVERSE CERTIFICATE
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-3
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
2007-3 (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 May 2007, 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 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.
D-1
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.
Each
of
the Class C, Class P, Class ES and Class R Certificates 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
10% of the Cut-Off Date Aggregate Principal Balance, the Servicer, with the
prior written consent of the NIMS Insurer or at the direction of the NIMS
Insurer 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 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 Certificate 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.
D-2
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
D-3
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.
D-4
EXHIBIT
E
[RESERVED]
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]
[Custodian, on behalf of the Trustee] under a certain Pooling and Servicing
Agreement dated as of April 1, 2007 among Greenwich Capital Acceptance, Inc.,
as
Depositor, Greenwich Capital Financial Products, Inc., as Seller, Xxxxxxx Fixed
Income Services Inc., as credit risk manager and Xxxxx Fargo Bank, N.A., as
Trustee (the “Pooling and Servicing Agreement”), the undersigned [Servicer]
hereby requests a release of the Mortgage File held by you as [Trustee]
[Custodian, on behalf of the 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 [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 [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 [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)
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).
F-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Pooling and
Servicing Agreement.
_____________________________________
[Name
of
[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
2007-3
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement dated as of April 1,
2007, among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, Inc., as Seller, Xxxxxxx Fixed Income Services Inc., as
credit risk manager and Xxxxx Fargo Bank, N.A., as Trustee, 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 Custodian
By:
Name:
Title:
Dated:
G-1-1
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “HarborView 2007-3 Mortgage
Loan
Schedule”
at the Washington DC offices of XxXxx Xxxxxx LLP]
G-1-2
EXHIBIT
2
EXCEPTION
REPORT
[To
be retained in a separate closing binder entitled “HarborView 2007-3 Mortgage
Loan
Schedule”
at the Washington DC offices of XxXxx Xxxxxx LLP]
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
|
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2007, among Greenwich
Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products,
Inc., as Seller, Xxxxxxx Fixed Income Services Inc., as credit risk
manager and Xxxxx Fargo Bank, N.A., as Trustee, HarborView Mortgage
Loan
Trust Mortgage
Loan
Pass-Through Certificates, Series 2007-3
|
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;
|
such
documents have been reviewed by the Trustee and have not been mutilated, damaged
or torn and relate to such Mortgage Loan; and
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.
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.
G-2-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
XXXXX
FARGO BANK, N.A., 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
|
|
Re:
|
Pooling
and Servicing Agreement dated as of April 1, 2007, among Greenwich
Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products,
Inc., as Seller, Xxxxxxx Fixed Income Services Inc., as credit risk
manager and Xxxxx Fargo Bank, N.A., as Trustee, HarborView Mortgage
Loan
Trust Mortgage
Loan
Pass-Through Certificates, Series 2007-3
|
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.
XXXXX
FARGO BANK, N.A., 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 Xxxxx Fargo Bank,
N.A., as trustee on behalf of HarborView Mortgage Loan Trust Mortgage Loan
Pass-Through Certificates, Series 2007-3, to accept the transfer of the above
described loan from the Seller.
The
Seller agrees to indemnify Xxxxx Fargo Bank, N.A. 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 Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
| Re: |
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates,
Series 2007-3, 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 April 1, 2007 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as Trustee, 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 Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates,
Series 2007-3, 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 and any NIMS Insurer 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, any NIMS Insurer 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.
3. The
Transferee hereby acknowledges that under the terms of the Pooling and Servicing
Agreement dated as of April 1, 2007 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as Trustee, 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.
I-2-1
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 Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan
Pass-Through
Certificates, Series 2007-3, Class [C][P][R][ES]
|
Ladies
and Gentlemen:
In
connection with our acquisition the Class [C][P][R][ES] 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 and not as a middleman as
that term is defined in Treasury Regulation Section 1.671-5(b)(10) (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 the Pooling and Servicing
Agreement.
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 Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Service Manager - HarborView 2007-3
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan
Pass-Through
Certificates, Series 2007-3, Class [C][P][R][ES]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the Class [C][P][R][ES] 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.
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 $
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:
J-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]
Greenwich
Capital Acceptance, Inc.
600
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Corporate Trust, HarborView Mortgage Loan Trust 2007-3
Xxxxx
Fargo Bank, N.A.
Sixxx
Xxxxxx & Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan
Pass-Through
Certificates, Series 2007-3, 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
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2007-3,
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 April 1, 2007, relating to the
above-referenced Certificates, among Greenwich Capital Acceptance,
Inc.,
as Depositor, Greenwich Capital Financial Products, Inc., as Seller,
Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo
Bank, N.A., as Trustee. 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-0
XXXXXXX
X-0
FORM
OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor and
the Trustee, and each of their officers, directors and affiliates
that:
(1) I
have
reviewed [the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”),] the
report on assessment of the Company’s compliance with the Servicing Criteria set
forth in Item 1122(d) of Regulation AB (the “Servicing Criteria”), provided in
accordance with Rules 13a-18 and 15d-18 under the Securities Exchange Act of
1934, as amended (the “Exchange Act”) and Item 1122 of Regulation AB (the
“Servicing Assessment”), the registered public accounting firm’s attestation
report provided in accordance with Rules 13a-18 and 15d-18 under the Exchange
Act and Section 1122(b) of Regulation AB (the “Attestation Report”), and all
servicing reports, officer’s certificates and other information relating to the
servicing of the Mortgage Loans by the Company during 200[ ] that were delivered
by the Company to any of the Depositor and the Trustee pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on
my knowledge, the Company Servicing Information, taken as a whole, does not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on
my knowledge, all of the Company Servicing Information required to be provided
by the Company under the Agreement has been provided to the Depositor and the
Trustee;
(4) I
am
responsible for reviewing the activities performed by [_______] as [_______]
under the [_______] (the “Agreement”), and based on my knowledge [and the
compliance review conducted in preparing the Compliance Statement] and except
as
disclosed in [the Compliance Statement,] the Servicing Assessment or the
Attestation Report, the Company has fulfilled its obligations under the
Agreement in all material respects; and
(5) [The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and] [The] [the] Servicing Assessment and Attestation Report required
to be provided by the Company and [by any Subservicer or Subcontractor] pursuant
to the Agreement, have been provided to the Depositor and the Trustee. Any
material instances of noncompliance described in such reports have been
disclosed to the Depositor and the Trustee. Any material instance of
noncompliance with the Servicing Criteria has been disclosed in such
reports.
M-1-1
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement dated as of April 1, 2007 (the “Pooling and
Servicing Agreement”) among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, Xxxxxxx Fixed Income
Services Inc., as credit risk manager and Xxxxx Fargo Bank, N.A., as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
to
them in the Pooling and Servicing Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
M-0-0
XXXXXXX
X-0
FORM
OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION TO BE PROVIDED BY THE
TRUSTEE
Greenwich
Capital Acceptance, Inc.
600
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Attention:
Corporate Trust, HarborView Mortgage Loan Trust 2006-10
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates,
Series 2007-3, issued pursuant to the Pooling and
Servicing
Agreement dated as of April 1, 2007, among Greenwich
Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products,
Inc., as Seller, Xxxxxxx Fixed Income Services Inc., as credit
risk
manager
and Xxxxx Fargo Bank, N.A., as
Trustee
|
The
Trustee hereby certifies to the Depositor and its officers, directors and
affiliates, and with the knowledge and intent that they will rely upon this
certification, that:
(1) I
have
reviewed the annual report on Form 10-K for the fiscal year [____] (the “Annual
Report”), and all reports on Form 10-D required to be filed in respect of period
covered by the Annual Report (collectively with the Annual Report, the
“Reports”), of the Trust;
(2) To
my
knowledge, (a) the Reports, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make
the statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by the Annual
Report, and (b) the Trustee’s assessment of compliance and related attestation
report referred to below, taken as a whole, do not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements
were
made, not misleading with respect to the period covered by such assessment
of
compliance and attestation report;
(3) To
my
knowledge, the distribution information required to be provided by the Trustee
under the Trust Agreement for inclusion in the Reports is included in the
Reports;
(4) I
am
responsible for reviewing the activities performed by the Trustee under the
Trust Agreement, and based on my knowledge and the compliance review conducted
in preparing the assessment of compliance of the Trustee required by the Trust
Agreement, and except as disclosed in the Reports, the Trustee has fulfilled
its
obligations under the Trust Agreement in all material respects; and
(5) The
report on assessment of compliance with servicing criteria applicable to the
Trustee for asset-backed securities of the Trustee and each Subcontractor
utilized by the Trustee and related attestation report on assessment of
compliance with servicing criteria applicable to it required to be included
in
the Annual Report in accordance with Item 1122 of Regulation AB and Exchange
Act
Rules 13a-18 and 15d-18 has been included as an exhibit to the Annual Report.
Any material instances of non-compliance are described in such report and have
been disclosed in the Annual Report.
M-2-1
In
giving
the certifications above, the Trustee has reasonably relied on information
provided to it by the following unaffiliated parties: [names of servicer(s),
subservicer(s), depositor, credit risk manager, custodian(s)]
Date:
________________________________
Xxxxx
Fargo Bank, N.A., as Trustee
________________________________
[Signature]
[Title]
M-2-2
EXHIBIT
N
LIST
OF SERVICERS AND SERVICING AGREEMENTS
1.
Amended and Restated Master Interim Servicing Agreement dated as of January
1,
2006, between GCFP and GMAC Mortgage, LLC (as successor by merger to GMAC
Mortgage Corporation) (“GMACM”), as reconstituted pursuant to a Reconstituted
Servicing Agreement dated as of April 1, 2007, by and between GCFP and GMACM
and
acknowledged by Xxxxx Fargo and Deutsche Bank.
EXHIBIT
O
TRANSACTION
PARTIES
|
Custodian
|
Deutsche
Bank National Trust Company
|
|
Depositor
|
Greenwich
Capital Acceptance, Inc.
|
|
Originators
|
Ameriquest
Mortgage Company, BankUnited, FSB, BSM Financial, LP, ComUnity Lending,
Inc., First Federal Bank of California, Residential Mortgage Capital,
Xxxx
Financial, LLC, Lending1st Mortgage LLC, Loan Center of California,
Inc.,
Just Mortgage, Inc., NL Inc. dba Residential Pacific Mortgage, MortgageIT,
Inc., Pinnacle Financial Corporation, Sierra Pacific Mortgage Co.,
Inc.,
SunTrust Mortgage, Inc.
|
|
Servicer
|
GMAC
Mortgage Corporation.
|
|
Sponsor
and Seller
|
Greenwich
Capital Financial Products, Inc.
|
|
Trustee
|
Xxxxx
Fargo Bank, N.A.
|
|
Yield
Maintenance Provider
|
The
Royal Bank of Scotland plc
|
O-1
EXHIBIT
P
FORM
OF TRUSTEE CERTIFICATE
|
Re:
|
HarborView
Mortgage Loan Trust (the “Trust”)
|
Mortgage
Loan Pass-Through Certificates, Series 2007-3
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Bank, N.A.,
as
Trustee of the Trust, hereby certify to Greenwich Capital Acceptance, Inc.
(the
“Depositor”), and its officers, directors and affiliates, and with the knowledge
and intent that they will rely upon this certification, that:
1. I
have
reviewed the annual report on Form 10-K for the fiscal year [___], and all
reports on Form 10-D required to be filed in respect of the period covered
by
such Form 10-K of the Depositor relating to the above-referenced trust (the
“Exchange Act periodic reports”);
2. Based
on my knowledge, the information prepared by the Trustee, contained, in these
distribution reports taken as a whole, do not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make the statements
made, in light of the circumstances under which such statements were made,
not
misleading with respect to the period covered by this report; and
3. Based
on
my knowledge, the distribution information required to be provided by the
Trustee under the Pooling and Servicing Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling and Servicing Agreement, dated April 1, 2007 (the “Pooling and Servicing
Agreement”) among the Depositor, Greenwich Capital Financial Products, Inc., as
the seller (the “Seller”), Xxxxxxx Fixed Income Services Inc., as credit risk
manager and the Trustee, as trustee.
Xxxxx
Fargo Bank, N.A.,
as
Trustee
By:___________________________
[Name]
[Title]
[Date]
P-1
EXHIBIT
Q
FORM
OF CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (“WFBNA”), in
its capacities as Trustee, shall address, at a minimum, the criteria identified
as below as “Applicable Servicing Criteria:”
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
WFBNA
|
|
|
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.
|
|
|
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.
|
|
|
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
WFBNA
|
|
|
Reference
|
Criteria
|
|
|
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.
|
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.
|
|
Q-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
WFBNA
|
|
|
Reference
|
Criteria
|
|
|
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.
|
|
|
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.
|
|
Q-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for
WFBNA
|
|
|
Reference
|
Criteria
|
|
|
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-4
EXHIBIT
R
FORM
10-D,
FORM 8-K AND FORM 10-K REPORTING RESPONSIBILITY
As
to
each item described below, the entity indicated as the Responsible Party shall
be primarily responsible for reporting the information to the Trustee pursuant
to Section 3.07. If the Trustee is indicated below as to any item, then the
Trustee is primarily responsible for obtaining that information.
Under
Item 1 of Form 10-D: a) items marked “5.04 statement” are required to be
included in the periodic Distribution Date statement under Section 5.04,
provided by the Trustee, based upon information provided by the responsible
party; and b) items marked “Form 10-D report” are required to be in the Form
10-D report but not the 5.04 statement, provided by the party indicated.
Information under all other Items of Form 10-D is to be included in the Form
10-D report.
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
Item
1: Distribution and Pool Performance Information
|
|
|
Information
included in the Distribution Date Statement
|
Servicer(1)
Trustee
|
|
Any
information required by 1121 which is NOT included on the Distribution
Date 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
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee
and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Custodian
|
Custodian(2)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer
|
Servicer(1)
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
Item
3: Sale of Securities and Use of Proceeds
|
Depositor
|
R-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
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.
|
|
|
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)
|
Trustee
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
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
|
R-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
|
|
Item
on Form 10-D
|
Party
Responsible
|
|
▪
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.
|
|
|
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
|
Trustee
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
|
(1)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
|
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
|
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
|
R-3
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
*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.
|
|
|
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
proceedings known to be contemplated by governmental
authorities:
|
|
|
▪
Issuing Entity (Trust Fund)
|
Trustee
and Depositor
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Trust Agreement) or Depositor
|
|
▪
Depositor
|
Depositor
|
|
▪
Trustee
|
Trustee
|
|
▪
Custodian
|
Custodian(1)
|
|
▪
1110(b) Originator
|
Depositor
|
|
▪
Any 1108(a)(2) Servicer
|
Servicer(2)
|
|
▪
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)
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
R-4
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
|
|
Item
on Form 10-K
|
Party
Responsible
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
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)
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
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)
|
|
▪
Trustee
|
Trustee
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer(2)
|
|
▪
Any 1110 Originator
|
Depositor
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor
|
|
▪
Any other 1101(d)(1) material party
|
Depositor
|
|
(1)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
|
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.
|
All
parties (with respect to any agreement entered into by such
party)
|
R-5
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are fully
disclosed in the prospectus
|
|
|
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 (with respect to any agreement entered into by such
party)
|
|
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
|
|
▪
Affiliated Servicer
|
Servicer(1)
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer(1)
|
|
▪
Other material servicers
|
Servicer(1)
|
|
▪
Trustee
|
Trustee
|
|
▪
Significant Obligor
|
Depositor
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
▪
Derivative Counterparty
|
Depositor
|
|
▪
Custodian
|
Custodian(2)
|
|
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.
|
Depositor
Trustee
|
R-6
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the Certificateholders.
|
|
|
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 Trust Agreement.
|
Trustee
(only to the extent it is a party to any such documents)
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 Trustee
Requires
disclosure of any removal, replacement, substitution or addition
of any
affiliated servicer, other servicer servicing 10% or more of pool
assets
at time of report, other material servicers or trustee.
|
Depositor/
Servicer(1)/Trustee
|
|
Reg
AB disclosure about any new servicer is also required.
|
Servicer(1)/
Depositor
|
|
Reg
AB disclosure about any new Trustee is also required.
|
New
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
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
Item
6.04- Failure to Make a Required Distribution
|
Trustee
(so long as the Trustee is the Paying Agent)
|
|
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
|
R-7
|
FORM
8-K DISCLOSURE INFORMATION
|
|
|
Item
on Form 8-K
|
Party
Responsible
|
|
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
|
|
(1)
|
This
information to be provided pursuant to the Servicing
Agreement.
|
|
(2)
|
This
information to be provided pursuant to the Custodial
Agreement.
|
R-8
EXHIBIT
S
[RESERVED]
S-1
EXHIBIT
T
FORM
OF SUBSEQUENT TRANSFER AGREEMENT
T-1
EXHIBIT
U
ADDITIONAL
DISCLOSURE NOTIFICATION
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.,
as
Trustee to HarborView Mortgage Loan Trust 2007-3
0000
Xxx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
Attn:
Corporate Trust Services - HARBORVIEW MORTGAGE LOAN TRUST 2007-3-SEC REPORT
PROCESSING
RE:
**Additional Form [10-D] [10-K] [8-K] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 3.04, 3.05, 3.06, 3.07, 3.08 and 3.09 of the Pooling
and
Servicing Agreement dated as of April 1, 2007, among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxxxx Fixed Income Services Inc., as credit risk manager and Xxxxx
Fargo Bank, N.A., as Trustee, the undersigned, as [ ], hereby notifies you
that
certain events have come to our attention that [will][may] need to be disclosed
on Form [10-D] [10-K] [8-K].
Description
of Additional Form [10-D] [10-K] [8-K] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [10-D] [10-K]
[8-K]
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
LIST
OF ORIGINATORS AND PURCHASE AGREEMENTS
1. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of February
1,
2007, between Greenwich Capital Financial Products, Inc. and Ameriquest Mortgage
Company.
2. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of December
1,
2005, as amended by that certain Amendment Number One dated February 1, 2006,
and further amended by that certain Amendment Number Two dated June 1, 2006,
between Greenwich Capital Financial Products, Inc. and BankUnited,
FSB.
3. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of October
1,
2006, between Greenwich Capital Financial Products, Inc. and BSM Financial,
LP.
4. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of March 1,
2006, as amended by that certain Amendment Number One dated as of May 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, between Greenwich Capital Financial Products, Inc. and ComUnity Lending,
Inc.
5. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of March 1,
2006, as amended by that certain Amendment Number One dated as of October 2,
2006, between Greenwich Capital Financial Products, Inc. and First Federal
Bank
of California.
6. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of March 1,
2006, as amended by that certain Amendment Number One dated as of June 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, between Greenwich Capital Financial Products, Inc. and Just Mortgage,
Inc.
7. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of March 1,
2007, between Greenwich Capital Financial Products, Inc. and Lending1st Mortgage
LLC.
8. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of November
1,
2005, as amended by that certain Amendment Number One dated as of May 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, between Greenwich Capital Financial Products, Inc. and Loan Center of
California, Inc.
9. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of November
1,
2005, between Greenwich Capital Financial Products, Inc. and MortgageIT,
Inc.
10. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of November
1,
2005, as amended by that certain Amendment Number One dated as of May 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, between Greenwich Capital Financial Products, Inc. and Xxxx Financial,
LLC.
V-1
11. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of May 1, 2006,
as amended by that certain Amendment Number One dated as of June 1, 2006 and
as
amended by that certain Amendment Number Two dated as of October 2, 2006,
between Greenwich Capital Financial Products, Inc. and Pinnacle Financial
Corporation.
12. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of November
1,
2005, as amended by that certain Amendment Number One dated as of May 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, between Greenwich Capital Financial Products, Inc. and Residential
Mortgage Capital.
13. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of March 1,
2006, as amended by that certain Amendment Number One dated as of May 1, 2006,
and further amended by that certain Amendment Number Two dated as of October
9,
2006, and further amended by that certain Amendment Number Three dated as of
November 14, 2006, between Greenwich Capital Financial Products, Inc. and NL
Inc. dba Residential Pacific Mortgage.
14. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of November
1,
2005, as amended by that certain Amendment Number One dated as of May 1, 2006,
between Greenwich Capital Financial Products, Inc. and Sierra Pacific Mortgage
Co., Inc.
15. Master
Mortgage Loan Purchase and Interim Servicing Agreement dated as of October
1,
2006, between Greenwich Capital Financial Products, Inc. and SunTrust Mortgage,
Inc.
V-2
EXHIBIT
W
YIELD
MAINTENANCE ALLOCATION AGREEMENT
W-1
YIELD
MAINTENANCE ALLOCATION AGREEMENT
This
Yield Maintenance Allocation Agreement, dated as of April 27, 2007 (this
“Agreement”), among Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo”), not in its
individual capacity, but solely in its capacity as administrator for the
yield
maintenance trust (in such capacity, the “Yield Maintenance Administrator”) and
as trustee under the Pooling and Servicing Agreement, as hereinafter defined
(in
such capacity, the “Trustee”) and Greenwich Capital Financial Products, Inc.
(“GCFP”), or its designee.
WHEREAS,
the Yield Maintenance Administrator, on behalf of a separate trust established
hereunder will enter into the Yield Maintenance Agreement dated as of April
27,
2007 (the “Yield Maintenance Agreement”), a copy of which is attached hereto as
Exhibit A, between the Yield Maintenance Administrator and The Royal Bank
of
Scotland plc (the “Yield Maintenance Provider”), the counterparty to the Yield
Maintenance Agreement; and
WHEREAS,
it is desirable to appoint the Yield Maintenance Administrator, and the Yield
Maintenance Administrator desires to accept such appointment, to receive
and
distribute funds payable by the Yield Maintenance Provider to the Yield
Maintenance Administrator under the Yield Maintenance Agreement as provided
herein;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and
for
other good and valuable consideration, the receipt and adequacy of which
are
hereby acknowledged, the parties agree as follows:
1. Definitions.
Capitalized terms used but not otherwise defined herein shall have the
respective meanings assigned thereto in the Pooling and Servicing Agreement
dated as of April 1, 2007 (the “Pooling and Servicing Agreement”), among
Greenwich Capital Assurance, Inc., as depositor, GCFP, the Trustee and Xxxxxxx
Fixed Income Services, Inc. as credit risk manager relating to the HarborView
Mortgage Loan Trust (the “Trust”) Mortgage Loan Pass-Through Certificates,
Series 2007-2 (the “Certificates”), or in the related Indenture (as hereinafter
defined) as the case may be, as in effect on the date hereof.
2. Yield
Maintenance Trust.
There
is hereby established a separate trust (the “Yield Maintenance Trust”), into
which the Yield Maintenance Administrator shall deposit the Yield Maintenance
Agreement. The Yield Maintenance Trust shall be maintained by the Yield
Maintenance Administrator. The sole assets of the Yield Maintenance Trust
shall
be the Yield Maintenance Agreement and the Yield Maintenance Trust Account
(each
as hereinafter defined).
3. Yield
Maintenance Administrator.
(a) The
Yield
Maintenance Administrator is hereby authorized and directed to execute the
Yield
Maintenance Agreement and is appointed to receive all funds paid to the Yield
Maintenance Administrator by the Yield Maintenance Provider or its successors
in
interest under the Yield Maintenance Agreement (including any termination
payments under the Yield Maintenance Agreement) and the Yield Maintenance
Administrator accepts such appointment and hereby agrees to receive such
amounts, deposit such amounts into the Yield Maintenance Trust Account, and
to
distribute on each Distribution Date such amounts in the following order
of
priority:
1
|
(i)
|
first,
for deposit into the Yield Maintenance Account, an amount equal
to the sum
of the following amounts remaining outstanding after distribution
of the
Net Monthly Excess Cashflow: (A) an amount necessary to maintain
or
restore the Overcollateralization Target Amount for the related
Distribution Date; (B) any Allocated Realized Loss Amounts remaining
unpaid; (C) any Monthly Interest Distributable Amount and Unpaid
Interest
Shortfall Amounts; (D) any Basis Risk Shortfalls; and (E) any Allocated
Net Deferred Interest Amounts;
|
|
(ii)
|
second,
to GCFP or its designee, any amounts remaining after payment of
clause (i)
above, provided,
however,
that upon the issuance of notes by an issuer (the “Issuer”) pursuant to an
indenture (the “Indenture”), secured by all or a portion of the Class C
Certificates and the Class P Certificates (the “NIM Notes”), GCFP or its
designee, hereby instructs the Yield Maintenance Administrator
to make any
payments under this clause
3(a)(ii):
|
(A) to
the
Indenture Trustee for the Issuer, for deposit into the Note Account (each
as
defined in the related Indenture), for distribution in accordance with the
terms
of the Indenture until satisfaction and discharge of the Indenture;
and
(B) after
satisfaction and discharge of the Indenture, to GCFP or its
designee.
(b) The
Yield
Maintenance Administrator agrees to hold any amounts received from the Yield
Maintenance Provider in trust upon the terms and conditions and for the
exclusive use and benefit of the Trustee and the Indenture Trustee, as
applicable (in turn for the benefit of the Certificateholders, the Noteholders,
GCFP and the NIMS Insurer, if any) as set forth herein. The rights, duties
and
liabilities of the Yield Maintenance Administrator in respect of this Agreement
shall be as follows:
(i) The
Yield
Maintenance Administrator shall have the full power and authority to do all
things not inconsistent with the provisions of this Agreement that may be
deemed
advisable in order to enforce the provisions hereof. The Yield Maintenance
Administrator shall not be answerable or accountable except for its own bad
faith, willful misconduct or negligence. The Yield Maintenance Administrator
shall not be required to take any action to exercise or enforce any of its
rights or powers hereunder which, in the opinion of the Yield Maintenance
Administrator, shall be likely to involve expense or liability to the Yield
Maintenance Administrator, unless the Yield Maintenance Administrator shall
have
received an agreement satisfactory to it in its sole discretion to indemnify
it
against such liability and expense.
(ii) The
Yield
Maintenance Administrator shall not be liable with respect to any action
taken
or omitted to be taken by it in good faith in accordance with the direction
of
any party hereto or the NIMS Insurer, if any, or otherwise as provided herein,
relating to the time, method and place of conducting any proceeding for any
remedy available to the Yield Maintenance Administrator or exercising any
right
or power conferred upon the Yield Maintenance Administrator under this
Agreement.
2
(iii) The
Yield
Maintenance Administrator may perform any duties hereunder either directly
or by
or through agents or attorneys of the Yield Maintenance Administrator. The
Yield
Maintenance Administrator shall not be liable for the acts or omissions of
its
agents or attorneys so long as the Yield Maintenance Administrator chose
such
Persons with due care.
4. Yield
Maintenance Trust Account.
The
Yield
Maintenance Administrator shall segregate and hold all funds received from
the
Yield Maintenance Provider under the Yield Maintenance Agreement (including
any
termination payments) separate and apart from any of its own funds and general
assets and shall establish and maintain in the name of the Yield Maintenance
Administrator one or more segregated accounts (the “Yield Maintenance Trust
Account”). The Yield Maintenance Trust 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 of the Yield Maintenance Administrator.
Amounts on deposit in the Yield Maintenance Trust Account shall not be invested
and shall not be held in an interest-bearing account.
5.
Replacement
Yield Maintenance Agreement.
The
Yield
Maintenance Administrator shall, at the direction of the NIMS Insurer, if
any,
or, with the consent of the NIMS Insurer, if any, at the direction of GCFP
or
its designee, enforce all of its rights and exercise any remedies under the
Yield Maintenance Agreement. In the event the Yield Maintenance Agreement
is
terminated as a result of the designation by either party thereto of an Early
Termination Date (as defined therein), GCFP or its designee, shall find a
replacement counterparty to enter into a replacement Yield Maintenance
Agreement.
Any
termination payment under the Yield Maintenance Agreement received by the
Yield
Maintenance Administrator from the Yield Maintenance Provider shall be deposited
into a separate, non-interest bearing account, established by the Yield
Maintenance Administrator and shall be used to make any upfront payment required
under a replacement Yield Maintenance Agreement.
Notwithstanding
anything contained herein, in the event that a replacement Yield Maintenance
Agreement cannot be obtained within 30 days after receipt by the Yield
Maintenance Administrator of a termination payment paid by the terminated
Yield
Maintenance Provider, the Yield Maintenance Administrator shall deposit such
termination payment into a separate, non-interest bearing account, established
by the Yield Maintenance Administrator and the Yield Maintenance Administrator
shall, on each Distribution Date, withdraw from such account, an amount equal
to
the Yield Maintenance Agreement Payment, if any, that would have been paid
to
the Trust by the original Yield Maintenance Provider (computed in accordance
with Exhibit A) and distribute such amount in accordance with Section 3(a)
of
this Agreement. On the Distribution Date immediately after the termination
date
of the original Yield Maintenance Agreement, the Yield Maintenance Administrator
shall withdraw any funds remaining in such account and distribute such amount
in
accordance with Section 3(a)(ii) of this Agreement.
3
6. Representations
and Warranties of Xxxxx Fargo Bank.
Xxxxx
Fargo Bank represents and warrants as follows:
(a) Xxxxx
Fargo Bank is duly organized and validly existing as a national banking
association organized under the laws of the United States and has all requisite
power and authority to execute and deliver this Agreement, to perform its
obligations as Yield Maintenance Administrator hereunder.
(b) The
execution, delivery and performance of this Agreement by Xxxxx Fargo Bank
as
Trustee have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by Xxxxx Fargo Bank as Yield
Maintenance Administrator and the Trustee and is enforceable against Xxxxx
Fargo
Bank in such capacities in accordance with its terms, except as enforceability
may be affected by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally, general equitable principles (whether considered in
a proceeding in equity or at law).
7.
Replacement
of Yield Maintenance Administrator.
Any
corporation, bank, trust company or association into which the Yield Maintenance
Administrator may be merged or converted or with which it may be consolidated,
or any corporation, bank, trust company or association resulting from any
merger, conversion or consolidation to which the Yield Maintenance Administrator
shall be a party, or any corporation, bank, trust company or association
succeeding to all or substantially all the corporate trust business of the
Yield
Maintenance Administrator, shall be the successor of the Yield Maintenance
Administrator hereunder, without the execution or filing of any paper or
any
further act on the part of any of the parties hereto, except to the extent
that
assumption of its duties and obligations, as such, is not effected by operation
of law.
No
resignation or removal of the Yield Maintenance Administrator and no appointment
of a successor Yield Maintenance Administrator shall become effective until
the
appointment by GCFP or its designee, of a successor Yield Maintenance
Administrator acceptable to the NIMS Insurer, if any. Any successor Yield
Maintenance Administrator shall execute such documents or instruments necessary
or appropriate to vest in and confirm to such successor Yield Maintenance
Administrator all such rights and powers conferred by this
Agreement.
The
Yield
Maintenance Administrator may resign at any time by giving written notice
thereof to the other parties hereto with a copy to the NIMS Insurer, if any.
If
a successor Yield Maintenance Administrator shall not have accepted the
appointment hereunder within 30 days after the giving by the resigning Yield
Maintenance Administrator of such notice of resignation, the resigning Yield
Maintenance Administrator may petition any court of competent jurisdiction
for
the appointment of a successor Yield Maintenance Administrator acceptable
to the
NIMS Insurer, if any.
4
In
the
event of a resignation or removal of the Yield Maintenance Administrator,
GCFP
or its designee shall promptly appoint a successor Yield Maintenance
Administrator acceptable to the NIMS Insurer, if any. If no such appointment
has
been made within 10 days of the resignation or removal, the NIMS Insurer,
if
any, may appoint a successor Yield Maintenance Administrator.
8.
Yield
Maintenance Administrator Obligations.
Whenever
the Yield Maintenance Administrator, as a party to the Yield Maintenance
Agreement, has the option or is requested in such capacity, whether such
request
is by the Yield Maintenance Provider, to take any action or to give any consent,
approval or waiver that it is on behalf of the Yield Maintenance Trust entitled
to take or give in such capacity (including, without limitation, in connection
with an amendment of such agreement or the occurrence of a default or
termination event thereunder), the Yield Maintenance Administrator shall
promptly notify the parties hereto and the NIMS Insurer, if any, of such
request
in such detail as is available to it and shall, on behalf of the parties
hereto
and the NIMS Insurer, if any, take such action in connection with the exercise
and/or enforcement of any rights and/or remedies available to it in such
capacity with respect to such request as GCFP or its designee, or the NIMS
Insurer, if any, shall direct in writing; provided
that if
no such direction is received prior to the date that is established for taking
such action or giving such consent, approval or waiver (notice of which date
shall be given by the Yield Maintenance Administrator to the parties hereto
and
the NIMS Insurer, if any), the Yield Maintenance Administrator may abstain
from
taking such action or giving such consent, approval or waiver.
The
Yield
Maintenance Administrator shall forward to the parties hereto and the NIMS
Insurer, if any, on the Distribution Date following its receipt thereof copies
of any and all written notices, statements, reports and/or other material
communications and information (collectively, the “Yield Maintenance Agreement
Reports”) that it receives in connection with the Yield Maintenance Agreement or
from the Yield Maintenance Provider. The Yield Maintenance Administrator
shall
have no information or other tax reporting obligations with respect to the
Yield
Maintenance Trust or the Yield Maintenance Trust Account.
9.
Miscellaneous.
(a) 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.
(b) Any
action or proceeding against any of the parties hereto relating in any way
to
this Agreement may be brought and enforced in the courts of the State of
New
York sitting in the borough of Manhattan or of the United States District
Court
for the Southern District of New York and the Yield Maintenance Administrator
irrevocably submits to the jurisdiction of each such court in respect of
any
such action or proceeding. The Yield Maintenance Administrator waives, to
the
fullest extent permitted by law, any right to remove any such action or
proceeding by reason of improper venue or inconvenient forum.
5
(c) This
Agreement may be amended, supplemented or modified in writing by the parties
hereto, but only with the consent of GCFP and the NIMS Insurer, if
any.
(d) This
Agreement may not be assigned or transferred without the prior written consent
of GCFP and the NIMS Insurer, if any; provided,
however,
the
parties hereto acknowledge and agree to the assignment of the rights of GCFP
or
its designee, pursuant to the Sale Agreement, the Trust Agreement and the
Indenture.
(e) This
Agreement may be executed by one or more of the parties to this Agreement
on any
number of separate counterparts (including by facsimile transmission), and
all
such counterparts taken together shall be deemed to constitute one and the
same
instrument.
(f) Any
provision of this Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
(g) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
(h) The
article and section headings herein are for convenience of reference only,
and
shall not limit or otherwise affect the meaning hereof.
(i) The
representations and warranties made by the parties to this Agreement shall
survive the execution and delivery of this Agreement. No act or omission
on the
part of any party hereto shall constitute a waiver of any such representation
or
warranty.
10. Third-Party
Beneficiary.
Each of
the Trustee, GCFP or its designee and the Indenture Trustee, if any, shall
be
deemed a third-party beneficiary of this Agreement to the same extent as
if it
were a party hereto, and shall have the right to enforce the provisions of
this
Agreement. If any default occurs on the part of the Yield Maintenance Provider
under the Yield Maintenance Agreement in the making of a payment due under
the
Yield Maintenance Agreement or in any other obligation of the Yield Maintenance
Provider under the Yield Maintenance Agreement, the Yield Maintenance
Administrator may and, upon the request of the Trustee, GCFP or its designee
or
the Indenture Trustee, shall take such action as may be appropriate to enforce
such payment or performance, including the institution and prosecution of
appropriate proceedings.
11. Yield
Maintenance Administrator and Trustee Rights.
In
connection with its execution and delivery of this Agreement and the Yield
Maintenance Agreement and its performance of its duties and obligations
hereunder and thereunder, the Yield Maintenance Administrator shall be entitled
to the same rights, protections and indemnities afforded to the Trustee under
the Pooling and Servicing Agreement, and the Indenture Trustee under the
Indenture, in each case as if specifically set forth herein with respect
to the
Yield Maintenance Administrator.
6
In
connection with its execution and delivery of this Agreement and its performance
of its duties and obligations hereunder, the Trustee shall be entitled to
the
same rights, protections and indemnities afforded to the Trustee under the
Pooling and Servicing Agreement as if specifically set forth herein with
respect
to the Yield Maintenance Administrator.
12. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement
is
executed and delivered by the Trustee, not in its individual capacity but
solely
as Trustee under the Pooling and Servicing Agreement. Notwithstanding any
other
provisions of this Agreement, the obligations of the Trustee under this
Agreement are non-recourse to the Trustee, its assets and its property, and
shall be payable solely from the assets of the Trust Fund, and following
realization of such assets, any claims of any party hereto shall be extinguished
and shall not thereafter be reinstated. No recourse shall be had against
any
principal, director, officer, employee, beneficiary, shareholder, partner,
member, Trustee, agent or affiliate of the Trustee or any person owning,
directly or indirectly, any legal or beneficial interest in the Trustee,
or any
successors or assigns of any of the foregoing (the “Exculpated Parties”) for the
payment of any amount payable under this Agreement. The parties hereto shall
not
enforce the liability and obligations of the Trustee to perform and observe
the
obligations contained in this Agreement by any action or proceeding wherein
a
money judgment establishing any personal liability shall be sought against
the
Trustee, subject to the following sentence, or the Exculpated Parties. The
agreements in this paragraph shall survive termination of this Agreement
and the
performance of all obligations hereunder.
7
IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Yield Maintenance Administrator
under this Agreement
|
||
|
By:
|
___________________________ | |
|
Name:
Title:
|
||
|
XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Trustee under the Pooling
and
Servicing Agreement
|
||
|
By:
|
___________________________ | |
|
Name:
Title:
|
||
|
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
|
||
|
By:
|
___________________________ | |
|
Name:
|
||
|
Title:
|
||
EXHIBIT
A
YIELD
MAINTENANCE AGREEMENT
SEE
EXHIBIT W TO THE POOLING AND SERVICING AGREEMENT
EXHIBIT
X
YIELD
MAINTENANCE AGREEMENT
X-1
EXHIBIT
Y
LIST
OF SUPPORTED ORIGINATORS
|
1.
|
MortgageIT,
Inc.
|
|
2.
|
Sierra
Pacific Mortgage Co., Inc.
|
Y-1
