YIELD MAINTENANCE ALLOCATION AGREEMENT
EXECUTION
This
Yield Maintenance Allocation Agreement dated as of February 22, 2007 (this
“Agreement”), among Xxxxx Fargo Bank, N.A. (“Xxxxx Fargo Bank”), not in its
individual capacity, but solely in its capacity as administrator for the yield
maintenance trust (in such capacity, the “Administrator”) and as securities
administrator under the Pooling and Servicing Agreement, as hereinafter defined
(in such capacity, the “Securities Administrator”) and Greenwich Capital
Financial Products, Inc. (“GCFP”), or its designee.
WHEREAS,
the Administrator, on behalf of a separate trust established hereunder will
enter into the Yield Maintenance Agreement dated as of February 22, 2007 (the
“Yield Maintenance Agreement”), a copy of which is attached hereto as Exhibit A,
between the Administrator and The Bank of New York (the “Yield Maintenance
Provider”), the counterparty to the Yield Maintenance Agreement;
and
WHEREAS,
it is desirable to appoint the Administrator, and the Administrator desires
to
accept such appointment, to receive and distribute funds payable by the Yield
Maintenance Provider to the 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 February 1, 2007 (the “Pooling and Servicing Agreement”), among
Greenwich Capital Acceptance, Inc., as depositor, GCFP, Xxxxxxx Fixed Income
Services, Inc., as credit risk manager, Xxxxx Fargo Bank, as master servicer,
the Securities Administrator and Deutsche Bank National Trust Company, as
trustee (“the Trustee”), relating to the DSLA Mortgage Loan Trust (the “Trust”)
Mortgage Loan Pass-Through Certificates, Series 2007-AR1 (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 Administrator shall deposit the Yield Maintenance Agreement. The
Yield
Maintenance Trust shall be maintained by the 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. Administrator.
(a) The
Administrator is hereby authorized and directed to execute the Yield Maintenance
Agreement and is appointed to receive all funds paid to the 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 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:
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(i)
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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;
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(ii)
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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 Administrator to make any payments
under
this clause 3(a)(ii):
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(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
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 Securities Administrator 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 Administrator in respect of this Agreement shall be as
follows:
(i) The
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 Administrator shall not be
answerable or accountable except for its own bad faith, willful misconduct
or
negligence. The 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 Administrator, shall be likely to involve expense or liability to the
Administrator, unless the Administrator shall have received an agreement
satisfactory to it in its sole discretion to indemnify it against such liability
and expense.
(ii) The
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 Administrator or exercising any right or power conferred upon the
Administrator under this Agreement.
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(iii) The
Administrator may perform any duties hereunder either directly or by or through
agents or attorneys of the Administrator. The Administrator shall not be liable
for the acts or omissions of its agents or attorneys so long as the
Administrator chose such Persons with due care.
4. Yield
Maintenance Trust Account.
The
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 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 Administrator. Amounts on deposit in the Yield
Maintenance Trust Account shall not be invested and shall not be held in an
interest-bearing account.
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5.
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Replacement
Yield Maintenance Agreement.
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The
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
Administrator from the Yield Maintenance Provider shall be deposited into a
separate, non-interest bearing account, established by the 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 Administrator
of a termination payment paid by the terminated Yield Maintenance Provider,
the
Administrator shall deposit such termination payment into a separate,
non-interest bearing account, established by the Administrator and the
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 Administrator
shall withdraw any funds remaining in such account and distribute such amount
in
accordance with Section 3(a)(ii) of this Agreement.
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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 Administrator hereunder.
(b) The
execution, delivery and performance of this Agreement by Xxxxx Fargo Bank as
Securities Administrator have been duly authorized in the Pooling and Servicing
Agreement.
(c) This
Agreement has been duly executed and delivered by Xxxxx Fargo Bank as
Administrator and the Securities Administrator 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).
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7.
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Replacement
of Administrator.
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Any
corporation, bank, trust company or association into which the 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 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 Administrator, shall be the successor of the
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 Administrator and no appointment of a successor
Administrator shall become effective until the appointment by GCFP or its
designee, of a successor Administrator acceptable to the NIMS Insurer, if any.
Any successor Administrator shall execute such documents or instruments
necessary or appropriate to vest in and confirm to such successor Administrator
all such rights and powers conferred by this Agreement.
The
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
Administrator shall not have accepted the appointment hereunder within 30 days
after the giving by the resigning Administrator of such notice of resignation,
the resigning Administrator may petition any court of competent jurisdiction
for
the appointment of a successor Administrator acceptable to the NIMS Insurer,
if
any.
In
the
event of a resignation or removal of the Administrator, GCFP or its designee
shall promptly appoint a successor 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
Administrator.
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8.
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Administrator
Obligations.
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Whenever
the 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 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 Administrator to the parties hereto and the NIMS Insurer,
if any), the Administrator may abstain from taking such action or giving such
consent, approval or waiver.
The
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 Administrator shall have no information or other
tax
reporting obligations with respect to the Yield Maintenance Trust or the Yield
Maintenance Trust Account.
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9.
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Miscellaneous.
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(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 Administrator irrevocably submits
to the jurisdiction of each such court in respect of any such action or
proceeding. The 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.
(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.
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(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 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. Administrator
and Securities Administrator 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 Administrator shall be entitled to the same
rights, protections and indemnities afforded to the Securities Administrator
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
Administrator.
In
connection with its execution and delivery of this Agreement and its performance
of its duties and obligations hereunder, the Securities Administrator shall
be
entitled to the same rights, protections and indemnities afforded to the
Securities Administrator under the Pooling and Servicing Agreement as if
specifically set forth herein with respect to the Administrator.
12. Limited
Recourse.
It is
expressly understood and agreed by the parties hereto that this Agreement is
executed and delivered by the Securities Administrator, not in its individual
capacity but solely as Securities Administrator under the Pooling and Servicing
Agreement. Notwithstanding any other provisions of this Agreement, the
obligations of the Securities Administrator under this Agreement are
non-recourse to the Securities Administrator, 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, agent or affiliate of the Securities Administrator or any person owning,
directly or indirectly, any legal or beneficial interest in the Securities
Administrator, 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 Securities Administrator 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 Securities Administrator,
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.
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IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
and
delivered as of the day and year first above written.
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XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Administrator under this
Agreement
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| By: | /s/ Xxxxxx X. Xxxxxxx | |
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Name: Xxxxxx X. Xxxxxxx |
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| Title: Assistant Vice President | ||
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XXXXX
FARGO BANK, N.A.
not
in its individual capacity but solely as Securities Administrator
under
the Pooling and Servicing Agreement
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| By: | /s/ Xxxxxx X. Xxxxxxx | |
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Name: Xxxxxx X. Xxxxxxx |
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| Title: Assistant Vice President | ||
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GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.
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| By: | /s/ Xxxxxx Xxxxxxxxxxx | |
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Name: Xxxxxx Xxxxxxxxxxx |
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| Title: Senior Vice President | ||
EXHIBIT
A
YIELD
MAINTENANCE AGREEMENT
[See
Exhibit 99.6]
