GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller WELLS FARGO BANK, N.A., Master Servicer and Securities Administrator CLAYTON FIXED INCOME SERVICES INC., Credit Risk Manager and DEUTSCHE BANK NATIONAL...
Execution
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
XXXXX
FARGO BANK, N.A.,
Master
Servicer and Securities Administrator
XXXXXXX
FIXED INCOME SERVICES INC.,
Credit
Risk Manager
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
Dated
as
of June 1, 2007
_________________________________
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-5
Table
of Contents
Page
|
ARTICLE
I DEFINITIONS; DECLARATION OF TRUST
|
12
|
|
SECTION
1.01. Defined Terms.
|
12
|
|
SECTION
1.02. Accounting.
|
58
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
58
|
|
SECTION
2.01. Conveyance of Mortgage Loans.
|
58
|
|
SECTION
2.02. Acceptance by Trustee.
|
65
|
|
SECTION
2.03. Repurchase or Substitution of Mortgage Loans by the Originator
and
the Seller.
|
67
|
|
SECTION
2.04. Representations and Warranties of the Seller with Respect
to the
Mortgage Loans.
|
71
|
|
SECTION
2.05. [Reserved]
|
73
|
|
SECTION
2.06. Representations and Warranties of the Depositor.
|
73
|
|
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 AND MASTER SERVICING OF THE MORTGAGE LOANS;
CREDIT RISK
MANAGER
|
77
|
|
SECTION
3.01. Master Servicer to Service and Administer the Mortgage
Loans.
|
77
|
|
SECTION
3.02. REMIC-Related Covenants.
|
78
|
|
SECTION
3.03. Monitoring of Servicer.
|
78
|
|
SECTION
3.04. Fidelity Bond.
|
80
|
|
SECTION
3.05. Power to Act; Procedures.
|
81
|
|
SECTION
3.06. Due-on-Sale Clauses; Assumption Agreements.
|
82
|
|
SECTION
3.07. Release of Mortgage Files.
|
82
|
|
SECTION
3.08. Documents, Records and Funds in Possession of Master Servicer
to be
Held for Trust Fund.
|
83
|
|
SECTION
3.09. Standard Hazard Insurance and Flood Insurance
Policies.
|
84
|
|
SECTION
3.10. Presentment of Claims and Collection of Proceeds.
|
84
|
|
SECTION
3.11. Maintenance of the Primary Insurance Policies.
|
84
|
|
SECTION
3.12. Trustee to Retain Possession of Certain Insurance Policies
and
Documents.
|
85
|
|
SECTION
3.13. Realization Upon Defaulted Mortgage Loans.
|
85
|
|
SECTION
3.14. Additional Compensation to the Master Servicer.
|
85
|
|
SECTION
3.15. REO Property.
|
86
|
|
SECTION
3.16. Assessments of Compliance and Attestation Reports.
|
86
|
|
SECTION
3.17. Annual Compliance Statement.
|
89
|
|
SECTION
3.18. Enforcement of Regulation AB Deliverables.
|
89
|
|
SECTION
3.19. Xxxxxxxx-Xxxxx Certification.
|
90
|
i
|
SECTION
3.20. Reports Filed with Securities and Exchange
Commission.
|
90
|
|
SECTION
3.21. Additional Information.
|
96
|
|
SECTION
3.22. Intention of the Parties and Interpretation.
|
97
|
|
SECTION
3.23. Indemnification.
|
97
|
|
SECTION
3.24. [Reserved]
|
98
|
|
SECTION
3.25. [Reserved]
|
98
|
|
SECTION
3.26. [Reserved]
|
98
|
|
SECTION
3.27. [Reserved]
|
98
|
|
SECTION
3.28. Closing Opinion of Counsel.
|
98
|
|
SECTION
3.29. [Reserved]
|
98
|
|
SECTION
3.30. Merger or Consolidation of the Master Servicer.
|
98
|
|
SECTION
3.31. Indemnification of the Trustee, the Master Servicer and the
Securities Administrator.
|
98
|
|
SECTION
3.32. Limitations on Liability of the Master Servicer and Others;
Indemnification of Trustee and Others.
|
99
|
|
SECTION
3.33. Master Servicer Not to Resign.
|
101
|
|
SECTION
3.34. Successor Master Servicer.
|
101
|
|
SECTION
3.35. Sale and Assignment of Master Servicing.
|
102
|
|
SECTION
3.36. Reporting Requirements of the Commission.
|
102
|
|
SECTION
3.37. Duties of the Credit Risk Manager.
|
102
|
|
SECTION
3.38. Limitation Upon Liability of the Credit Risk
Manager.
|
103
|
|
SECTION
3.39. Removal of Credit Risk Manager.
|
103
|
|
ARTICLE
IV ACCOUNTS
|
103
|
|
SECTION
4.01. Servicing Accounts.
|
103
|
|
SECTION
4.02. Distribution Account.
|
105
|
|
SECTION
4.03. Permitted Withdrawals and Transfers from the Distribution
Account.
|
107
|
|
SECTION
4.04. [Reserved]
|
109
|
|
SECTION
4.05. [Reserved]
|
109
|
|
SECTION
4.06. Prefunding Account.
|
109
|
|
ARTICLE
V FLOW OF FUNDS
|
110
|
|
SECTION
5.01. Distributions.
|
110
|
|
SECTION
5.02. Allocation of Net Deferred Interest.
|
117
|
|
SECTION
5.03. Allocation of Realized Losses.
|
117
|
|
SECTION
5.04. Statements.
|
118
|
|
SECTION
5.05. Remittance Reports; Advances.
|
121
|
|
SECTION
5.06. Compensating Interest Payments.
|
122
|
|
SECTION
5.07. Basis Risk Reserve Fund.
|
122
|
|
SECTION
5.08. Recoveries.
|
123
|
|
SECTION
5.09. [Reserved]
|
123
|
|
SECTION
5.10. Supplemental Interest Trust.
|
123
|
|
SECTION
5.11. Rights of Swap Provider.
|
125
|
|
SECTION
5.12. Swap Agreement Termination Receipts.
|
125
|
|
SECTION
5.13. Basis Risk Cap Agreement.
|
126
|
|
SECTION
5.14. Basis Risk Cap Termination Receipts.
|
127
|
ii
|
ARTICLE
VI THE CERTIFICATES
|
127
|
|
SECTION
6.01. The Certificates.
|
127
|
|
SECTION
6.02. Registration of Transfer and Exchange of
Certificates.
|
128
|
|
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen Certificates.
|
136
|
|
SECTION
6.04. Persons Deemed Owners.
|
136
|
|
SECTION
6.05. Appointment of Paying Agent.
|
137
|
|
ARTICLE
VII DEFAULT
|
137
|
|
SECTION
7.01. Event of Default.
|
137
|
|
SECTION
7.02. Trustee to Act.
|
140
|
|
SECTION
7.03. Waiver of Event of Default.
|
141
|
|
SECTION
7.04. Notification to Certificateholders.
|
141
|
|
ARTICLE
VIII THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
141
|
|
SECTION
8.01. Duties of the Trustee and the Securities
Administrator.
|
141
|
|
SECTION
8.02. Certain Matters Affecting the Trustee and the Securities
Administrator.
|
143
|
|
SECTION
8.03. Trustee and the Securities Administrator Not Liable for Certificates
or Mortgage Loans.
|
145
|
|
SECTION
8.04. Trustee, Custodian, Master Servicer and Securities Administrator
May
Own Certificates.
|
146
|
|
SECTION
8.05. Trustee’s and Securities Administrator’s Fees and
Expenses.
|
146
|
|
SECTION
8.06. Eligibility Requirements for Trustee and Securities
Administrator.
|
147
|
|
SECTION
8.07. Resignation or Removal of Trustee and Securities
Administrator.
|
147
|
|
SECTION
8.08. Successor Trustee and Successor Securities
Administrator.
|
149
|
|
SECTION
8.09. Merger or Consolidation of Trustee or Securities
Administrator.
|
149
|
|
SECTION
8.10. Appointment of Co-Trustee or Separate Trustee.
|
149
|
|
SECTION
8.11. Limitation of Liability.
|
151
|
|
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
|
151
|
|
SECTION
8.13. Suits for Enforcement.
|
152
|
|
SECTION
8.14. Waiver of Bond Requirement.
|
152
|
|
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
|
152
|
|
SECTION
8.16. Appointment of Custodian.
|
152
|
|
SECTION
8.17. Limitation of Liability of Trustee and Securities Administrator;
Indemnification.
|
152
|
|
SECTION
8.18. Closing Opinion of Counsel.
|
153
|
|
ARTICLE
IX REMIC ADMINISTRATION
|
153
|
|
SECTION
9.01. REMIC Administration.
|
153
|
|
SECTION
9.02. Prohibited Transactions and Activities.
|
156
|
|
ARTICLE
X TERMINATION
|
156
|
|
SECTION
10.01. Termination.
|
156
|
|
SECTION
10.02. Additional Termination Requirements.
|
159
|
|
SECTION
10.03. NIMS Insurer Optional Purchase Right of Distressed Mortgage
Loans.
|
160
|
iii
|
ARTICLE
XI DISPOSITION OF TRUST FUND ASSETS
|
160
|
|
SECTION
11.01. Disposition of Trust Fund Assets.
|
160
|
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
160
|
|
SECTION
12.01. Amendment.
|
160
|
|
SECTION
12.02. Recordation of Agreement; Counterparts.
|
162
|
|
SECTION
12.03. Limitation on Rights of Certificateholders.
|
162
|
|
SECTION
12.04. Governing Law; Jurisdiction.
|
163
|
|
SECTION
12.05. Notices.
|
163
|
|
SECTION
12.06. Severability of Provisions.
|
164
|
|
SECTION
12.07. Article and Section References.
|
164
|
|
SECTION
12.08. Notice to the Rating Agencies.
|
164
|
|
SECTION
12.09. Further Assurances.
|
165
|
|
SECTION
12.10. Benefits of Agreement.
|
166
|
|
SECTION
12.11. Acts of Certificateholders.
|
166
|
|
SECTION
12.12. Successors and Assigns.
|
167
|
|
SECTION
12.13. Provision of Information.
|
167
|
|
SECTION
12.14. Transfer of Servicing.
|
167
|
|
SECTION
12.15. [Reserved]
|
167
|
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
|
|
Exhibit
C-2
|
Form
of Class P Certificate
|
C-2
|
|
Exhibit
C-3
|
Form
of Class R Certificate
|
C-3
|
|
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
|
Form
of Back-Up Xxxxxxxx-Xxxxx Certification
|
M
|
|
Exhibit
N
|
List
of Servicers and Servicing Agreements
|
N
|
|
Exhibit
O
|
Transaction
Parties
|
O
|
|
Exhibit
P
|
Form
of Subsequent Transfer Agreement
|
P
|
|
Exhibit
Q
|
Servicing
Criteria to be Addressed in Report on Assessment of
Compliance
|
Q
|
iv
|
Exhibit
R
|
Form
10-D, Form 8-K, Form 10-K Reporting Responsibility
|
R
|
|
Exhibit
S
|
Form
of Securities Administrator Certification
|
S
|
|
Exhibit
T
|
Additional
Disclosure Notification
|
T
|
|
Exhibit
U
|
Specified
Representations and Warranties
|
U
|
|
Exhibit
V
|
Basis
Risk Cap Agreement
|
V
|
|
Exhibit
W
|
Swap
Agreement
|
W
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
v
This
Pooling and Servicing Agreement is dated as of June 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 master servicer (in
such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”),
XXXXXXX FIXED INCOME SERVICES INC., as credit risk manager (the “Credit Risk
Manager”) and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee and custodian (the “Trustee”).
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
2007-5 (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 sixteen classes
of
certificates, designated as (i) the Class A-1A Certificates, (ii) the Class
A-1B
Certificates, (iii) the Class A-1C Certificates, (iv) the Class B-1
Certificates, (v) the Class B-2 Certificates, (vi) Class B-3 Certificates,
(vii)
the Class B-4 Certificates, (viii) the Class B-5 Certificates, (ix) the Class
B-6 Certificates, (x) the Class B-7 Certificates, (xi) the Class B-8
Certificates, (xii) the Class C Certificates, (xiii) the Class P Certificates
and (xiv) the Class R Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held
in the
Prefunding Account, the Basis Risk Reserve Fund, the Basis Risk Cap Agreement,
the Basis Risk Cap Replacement Receipts Account, the Basis Risk Cap Account,
the
Basis Risk Cap Amount, the Swap Agreement, the Swap Account, the Swap Amount,
the Swap Replacement Receipts Account, the Swap Termination Receipts Account,
the Supplemental Interest Trust, and the Collateral Account (the “Excluded
Trust Property”))
comprises four REMICs in a tiered REMIC structure: the “Lower-Tier
REMIC,”
the
“Middle-Tier
REMIC 1,”
the
“Middle-Tier
REMIC 2,”
and
the “Upper-Tier
REMIC.”
Each
Certificate, other than the 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 provide in section 5.01(g), (ii) payments in respect
of
Basis Risk Shortfalls from the Basis Risk Reserve Fund as provided in Section
5.07, (iii) payments in respect of Basis Risk Shortfalls from the Basis Risk
Cap
Amount as provided in Section 5.01(j), (iii) payments in respect of Basis
Risk
Shortfalls from the Supplemental Interest Trust as provided in Section 5.01(k),
and (iv) the
obligation to pay Class I Shortfalls.
The
owners of the Class C Certificates beneficially own the Basis Risk Reserve
Fund,
the Basis Risk Cap Account, the Supplemental Interest Trust, the Swap Account,
the Final Maturity Reserve Account, and the Final Maturity Reserve Trust.
The
Class R Certificates represent the only classes of residual interests in
each
REMIC created hereby.
1
The
Upper Tier REMIC shall hold as its assets the uncertificated interests in
the
Middle-Tier REMIC 2 other than the Class MT2-R interest (each, a “Middle-Tier
REMIC 2 Regular Interest”),
and each such Middle-Tier REMIC 2 Regular Interest is hereby designated as
a
regular interest in Middle-Tier REMIC 2 for purposes of the REMIC Provisions.
Middle-Tier REMIC 2 shall hold as its assets the uncertificated interests
in
Middle-Tier REMIC 1 other than the Class MT1-R interest (each a “Middle-Tier
REMIC 1 Regular Interest”),
and each such Middle-Tier REMIC 1 Regular Interest is hereby designated as
a
regular interest in Middle-Tier REMIC 1. Middle-Tier REMIC 1 shall hold as
its
assets the uncertificated interests in the Lower-Tier REMIC other than the
Class
LT-R interest (each a “Lower-Tier
REMIC Regular Interest”),
and each such Lower-Tier REMIC Regular Interest is hereby designated as a
regular interest in the Lower-Tier REMIC. The Lower-Tier REMIC shall hold
as its
assets the property of the Trust Fund other than the Excluded Trust Property
and
the interests in any other REMIC created hereby.
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 REMIC Regular Interests and
the
LT-R Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
||
|
LT-Initial
|
(1)
|
$1,060,953,758.42
|
||
|
LT-Subsequent
|
(2)
|
$
53,979,820.00
|
||
|
LT-C
|
(3)
|
(3)
|
||
|
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 three Distribution Dates
(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 three Distribution Dates 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 three 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 such
first
Distribution Date. For each Distribution Date after the first five
Distribution Dates, the notional balance of the LT-C Interest shall
be
zero and it shall not be entitled to any
distributions.
|
2
|
(4)
|
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, the Securities Administrator shall first pay or charge
as an
expense of the Lower-Tier REMIC all expenses of the Trust Fund for such
Distribution Date, other than any Net Swap Payment or Swap Termination Payment
required to be made from the Trust Fund.
On
each
Distribution Date, Available Funds shall be distributed among the Lower-Tier
REMIC Regular Interests and the LT-R Interest in the following order of
priority:
(1)
First, as interest on the Lower-Tier REMIC 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 REMIC 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 REMIC 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.
3
Middle-Tier
REMIC 1
The
following table sets forth (or describes) the designation, interest rate,
and
initial principal balance of each Middle-Tier REMIC 1 Regular Interest and
the
MT1-R Interest:
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
MT1-A
|
(5)
|
(1)
|
|
MT1-F1
|
$
20,765,418.27
|
(2)
|
|
MT1-V1
|
$
20,765,418.27
|
(3)
|
|
MT1-F2
|
$
22,582,708.16
|
(2)
|
|
MT1-V2
|
$
22,582,708.16
|
(3)
|
|
MT1-F3
|
$
21,339,135.25
|
(2)
|
|
MT1-V3
|
$
21,339,135.25
|
(3)
|
|
MT1-F4
|
$
18,801,796.47
|
(2)
|
|
MT1-V4
|
$
18,801,796.47
|
(3)
|
|
MT1-F5
|
$
17,275,640.13
|
(2)
|
|
MT1-V5
|
$
17,275,640.13
|
(3)
|
|
MT1-F6
|
$
16,742,006.55
|
(2)
|
|
MT1-V6
|
$
16,742,006.55
|
(3)
|
|
MT1-F7
|
$
16,100,399.81
|
(2)
|
|
MT1-V7
|
$
16,100,399.81
|
(3)
|
|
MT1-F8
|
$
15,024,637.50
|
(2)
|
|
MT1-V8
|
$
15,024,637.50
|
(3)
|
|
MT1-F9
|
$
14,340,725.57
|
(2)
|
|
MT1-V9
|
$
14,340,725.57
|
(3)
|
|
MT1-F10
|
$
14,069,295.52
|
(2)
|
|
MT1-V10
|
$
14,069,295.52
|
(3)
|
|
MT1-F11
|
$
13,794,288.39
|
(2)
|
|
MT1-V11
|
$
13,794,288.39
|
(3)
|
|
MT1-F12
|
$
13,514,890.09
|
(2)
|
|
MT1-V12
|
$
13,514,890.09
|
(3)
|
|
MT1-F13
|
$
13,141,158.17
|
(2)
|
|
MT1-V13
|
$
13,141,158.17
|
(3)
|
|
MT1-F14
|
$
12,607,892.13
|
(2)
|
|
MT1-V14
|
$
12,607,892.13
|
(3)
|
|
MT1-F15
|
$
12,013,384.95
|
(2)
|
|
MT1-V15
|
$
12,013,384.95
|
(3)
|
|
MT1-F16
|
$
11,448,425.82
|
(2)
|
|
MT1-V16
|
$
11,448,425.82
|
(3)
|
|
MT1-F17
|
$
10,909,201.61
|
(2)
|
|
MT1-V17
|
$
10,909,201.61
|
(3)
|
|
MT1-F18
|
$
10,385,684.66
|
(2)
|
|
MT1-V18
|
$
10,385,684.66
|
(3)
|
|
MT1-F19
|
$
9,801,424.81
|
(2)
|
|
MT1-V19
|
$
9,801,424.81
|
(3)
|
|
MT1-F20
|
$
9,220,953.14
|
(2)
|
4
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
MT1-V20
|
$
9,220,953.14
|
(3)
|
|
MT1-F21
|
$
8,704,614.62
|
(2)
|
|
MT1-V21
|
$
8,704,614.62
|
(3)
|
|
MT1-F22
|
$
8,258,127.46
|
(2)
|
|
MT1-V22
|
$
8,258,127.46
|
(3)
|
|
MT1-F23
|
$
7,889,665.47
|
(2)
|
|
MT1-V23
|
$
7,889,665.47
|
(3)
|
|
MT1-F24
|
$
8,117,440.03
|
(2)
|
|
MT1-V24
|
$
8,117,440.03
|
(3)
|
|
MT1-F25
|
$
10,813,703.94
|
(2)
|
|
MT1-V25
|
$
10,813,703.94
|
(3)
|
|
MT1-F26
|
$
13,189,271.77
|
(2)
|
|
MT1-V26
|
$
13,189,271.77
|
(3)
|
|
MT1-F27
|
$
13,495,518.93
|
(2)
|
|
MT1-V27
|
$
13,495,518.93
|
(3)
|
|
MT1-F28
|
$
12,167,364.85
|
(2)
|
|
MT1-V28
|
$
12,167,364.85
|
(3)
|
|
MT1-F29
|
$
10,971,220.88
|
(2)
|
|
MT1-V29
|
$
10,971,220.88
|
(3)
|
|
MT1-F30
|
$
9,896,158.06
|
(2)
|
|
MT1-V30
|
$
9,896,158.06
|
(3)
|
|
MT1-F31
|
$
8,632,580.83
|
(2)
|
|
MT1-V31
|
$
8,632,580.83
|
(3)
|
|
MT1-F32
|
$
7,108,388.48
|
(2)
|
|
MT1-V32
|
$
7,108,388.48
|
(3)
|
|
MT1-F33
|
$
5,708,008.18
|
(2)
|
|
MT1-V33
|
$
5,708,008.18
|
(3)
|
|
MT1-F34
|
$
4,833,451.97
|
(2)
|
|
MT1-V34
|
$
4,833,451.97
|
(3)
|
|
MT1-F35
|
$
4,391,702.03
|
(2)
|
|
MT1-V35
|
$
4,391,702.03
|
(3)
|
|
MT1-F36
|
$
4,146,427.04
|
(2)
|
|
MT1-V36
|
$
4,146,427.04
|
(3)
|
|
MT1-F37
|
$
3,913,434.15
|
(2)
|
|
MT1-V37
|
$
3,913,434.15
|
(3)
|
|
MT1-F38
|
$
3,693,828.22
|
(2)
|
|
MT1-V38
|
$
3,693,828.22
|
(3)
|
|
MT1-F39
|
$
3,383,360.23
|
(2)
|
|
MT1-V39
|
$
3,383,360.23
|
(3)
|
|
MT1-F40
|
$
3,028,763.89
|
(2)
|
|
MT1-V40
|
$
3,028,763.89
|
(3)
|
|
MT1-F41
|
$
2,780,294.60
|
(2)
|
|
MT1-V41
|
$
2,780,294.60
|
(3)
|
|
MT1-F42
|
$
2,640,970.69
|
(2)
|
5
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
MT1-V42
|
$
2,640,970.69
|
(3)
|
|
MT1-F43
|
$
2,494,533.58
|
(2)
|
|
MT1-V43
|
$
2,494,533.58
|
(3)
|
|
MT1-F44
|
$
2,431,911.38
|
(2)
|
|
MT1-V44
|
$
2,431,911.38
|
(3)
|
|
MT1-F45
|
$
2,338,049.14
|
(2)
|
|
MT1-V45
|
$
2,338,049.14
|
(3)
|
|
MT1-F46
|
$
2,326,848.75
|
(2)
|
|
MT1-V46
|
$
2,326,848.75
|
(3)
|
|
MT1-F47
|
$
2,557,164.37
|
(2)
|
|
MT1-V47
|
$
2,557,164.37
|
(3)
|
|
MT1-F48
|
$
9,013,897.96
|
(2)
|
|
MT1-V48
|
$
9,013,897.96
|
(3)
|
|
MT1-F49
|
$
15,476,280.75
|
(2)
|
|
MT1-V49
|
$
15,476,280.75
|
(3)
|
|
MT1-F50
|
$
9,914,455.37
|
(2)
|
|
MT1-V50
|
$
9,914,455.37
|
(3)
|
|
MT1-F51
|
$
325,668.36
|
(2)
|
|
MT1-V51
|
$
325,668.36
|
(3)
|
|
MT1-F52
|
$
306,250.02
|
(2)
|
|
MT1-V52
|
$
306,250.02
|
(3)
|
|
MT1-F53
|
$
285,947.36
|
(2)
|
|
MT1-V53
|
$
285,947.36
|
(3)
|
|
MT1-F54
|
$
261,042.24
|
(2)
|
|
MT1-V54
|
$
261,042.24
|
(3)
|
|
MT1-F55
|
$
238,906.54
|
(2)
|
|
MT1-V55
|
$
238,906.54
|
(3)
|
|
MT1-F56
|
$
217,606.33
|
(2)
|
|
MT1-V56
|
$
217,606.33
|
(3)
|
|
MT1-F57
|
$
197,830.26
|
(2)
|
|
MT1-V57
|
$
197,830.26
|
(3)
|
|
MT1-F58
|
$
180,133.23
|
(2)
|
|
MT1-V58
|
$
180,133.23
|
(3)
|
|
MT1-F59
|
$
168,789.74
|
(2)
|
|
MT1-V59
|
$
168,789.74
|
(3)
|
|
MT1-F60
|
$
158,519.05
|
(2)
|
|
MT1-V60
|
$
158,519.05
|
(3)
|
|
MT1-F61
|
$
148,988.59
|
(2)
|
|
MT1-V61
|
$
148,988.59
|
(3)
|
|
MT1-F62
|
$
140,113.86
|
(2)
|
|
MT1-V62
|
$
140,113.86
|
(3)
|
|
MT1-F63
|
$
131,849.50
|
(2)
|
|
MT1-V63
|
$
131,849.50
|
(3)
|
|
MT1-F64
|
$
124,144.75
|
(2)
|
6
|
Class
Designation
|
Initial
Principal
Balance
|
Interest
Rate
|
|
MT1-V64
|
$
124,144.75
|
(3)
|
|
MT1-F65
|
$
116,953.87
|
(2)
|
|
MT1-V65
|
$
116,953.87
|
(3)
|
|
MT1-F66
|
$
110,235.66
|
(2)
|
|
MT1-V66
|
$
110,235.66
|
(3)
|
|
MT1-F67
|
$
104,074.07
|
(2)
|
|
MT1-V67
|
$
104,074.07
|
(3)
|
|
MT1-F68
|
$
98,564.91
|
(2)
|
|
MT1-V68
|
$
98,564.91
|
(3)
|
|
MT1-F69
|
$
2,035,470.89
|
(2)
|
|
MT1-F69
|
$
2,035,470.89
|
(3)
|
|
MT1-R
|
(4)
|
(4)
|
|
MT1-C
|
(6)
|
(6)
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for the Class MT1-A Interest shall be 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 (the
“Lower-Tier Net WAC”).
|
|
(2)
|
For
any Distribution Date (and the related Interest Accrual Period)
the
interest rate for each of these Middle-Tier REMIC 1 Regular Interests
shall be the lesser of (i) the REMIC Swap Rate and (ii) the product
of (a)
the Lower-Tier Net WAC and (b) 2.
|
|
(3)
|
For
any Distribution Date (and the related Accrual Period) the interest
rate
for each of these Middle-Tier REMIC 1 Interests shall be the excess,
if
any, of (i) the product of (a) the Lower-Tier Net WAC and (b) 2,
over (ii)
the REMIC Swap Rate.
|
|
(4)
|
The
Class MT1-R interest shall not have a principal amount and shall
not bear
interest. The Class MT1-R interest is hereby designated as the
sole class
of residual interest in REMIC 1.
|
(5)
This interest shall have an initial principal balance equal to the excess
of the
Pool Collateral Balance as of the Cut-off Date over the aggregate initial
principal balance of each remaining interest in Middle-Tier REMIC 1.
(6)
The MT1-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.
On
each
Distribution Date the Securities Administrator shall distribute Available
Funds
with respect to each of the Middle-Tier REMIC 1 Regular Interests based on
the
above-described interest rates.
On
each
Distribution Date, the Securities Administrator shall distribute the Principal
Remittance Amount with respect to the Middle-Tier REMIC 1 Interests, first
to
the Class MT1-A Interest until its principal balance is reduced to zero,
and
then sequentially, to the other Middle-Tier REMIC 1 Regular Interests in
ascending order of their numerical class designation, and, with respect to
each
pair of classes having the same numerical designation, in equal amounts to
each
such class, until the principal balance of each such class is reduced to
zero.
All losses on the Mortgage Loans shall be allocated among the Middle-Tier
REMIC
1 Regular Interests in the same manner that principal distributions are
allocated.
7
On
each
Distribution Date, the Securities Administrator shall distribute the Prepayment
Penalty Amounts collected during the preceding Prepayment Period to the Class
MT1-F78 and Class MT1-V78 Lower Tier Interests, respectively.
Middle-Tier
REMIC 2
The
following table sets forth (or describes) the designation, interest rate,
and
initial principal balance of each Middle-Tier REMIC 2 Regular Interest and
the
MT2-R Interest:
|
Class
Designation
|
Interest
Rate
|
Initial
Class
Principal
Amount
|
Corresponding
Class of
Certificate(s)
|
|||
|
Class
MT2-A-1A
|
(1)
|
(4)
|
A-1A
|
|||
|
Class
MT2-A-1B
|
(1)
|
(4)
|
A-1B
|
|||
|
Class
MT2-A-1C
|
(1)
|
(4)
|
A-1C
|
|||
|
Class
MT2-B1
|
(1)
|
(4)
|
B-1
|
|||
|
Class
MT2-B2
|
(1)
|
(4)
|
B-2
|
|||
|
Class
MT2-B3
|
(1)
|
(4)
|
B-3
|
|||
|
Class
MT2-B4
|
(1)
|
(4)
|
B-4
|
|||
|
Class
MT2-B5
|
(1)
|
(4)
|
B-5
|
|||
|
Class
MT2-B6
|
(1)
|
(4)
|
B-6
|
|||
|
Class
MT2-B7
|
(1)
|
(4)
|
B-7
|
|||
|
Class
MT2-B8
|
(1)
|
(4)
|
B-8
|
|||
|
Class
MT2-Q
|
(1)
|
(5)
|
N/A
|
|||
|
Class
MT2-IO
|
(2)
|
(2)
|
N/A
|
|||
|
Class
MT2-R
|
(3)
|
(3)
|
R
|
|||
|
Class
MT2-C
|
(6)
|
(6)
|
N/A
|
___________________________
|
(1)
|
For
any Distribution Date (and the related Interest Accrual Period)
the
interest rate for each of these Middle Tier REMIC 2 Regular Interests
is a
per annum rate equal to the weighted average of the interest rates
on the
Middle-Tier REMIC 1 Regular Interests for such Distribution Date;
provided,
however,
that for any Distribution Date on which the Class MT2-IO Interest
is
entitled to a portion of the interest accruals on a Middle-Tier
REMIC 1
Regular Interest having an “F” in its class designation, as described in
footnote two below, such weighted average shall be computed by
first
subjecting the rate on such Middle-Tier REMIC 1 Regular Interest
to a cap
equal to Swap LIBOR for such Distribution
Date.
|
|
(2)
|
The
Class MT2-IO is an interest only class that does not have a principal
balance. For only those Distribution Dates listed in the first
column in
the table below, the Class MT2-IO shall be entitled to interest
accrued on
the Middle-Tier REMIC 1 Regular listed in second column in the
table below
at a per annum rate equal to the excess, if any, of (i) the interest
rate
for such Middle-Tier REMIC 1 Regular Interest for such Distribution
Date
over (ii) Swap LIBOR for such Distribution
Date.
|
|
Distribution
Dates
|
Middle-Tier
REMIC
1
Class
Designation
|
|
12
|
Class
MT1-F1
|
|
|
12-13
|
Class
MT1-F2
|
|
|
12-14
|
Class
MT1-F3
|
|
|
12-15
|
Class
MT1-F4
|
|
|
12-16
|
Class
MT1-F5
|
8
|
Distribution
Dates
|
Middle-Tier
REMIC
1
Class
Designation
|
|
12-17
|
Class
MT1-F6
|
|
|
12-18
|
Class
MT1-F7
|
|
|
12-19
|
Class
MT1-F8
|
|
|
12-20
|
Class
MT1-F9
|
|
|
12-21
|
Class
MT1-F10
|
|
|
12-22
|
Class
MT1-F11
|
|
|
12-23
|
Class
MT1-F12
|
|
|
12-24
|
Class
MT1-F13
|
|
|
12-25
|
Class
MT1-F14
|
|
|
12-26
|
Class
MT1-F15
|
|
|
12-27
|
Class
MT1-F16
|
|
|
12-28
|
Class
MT1-F17
|
|
|
12-29
|
Class
MT1-F18
|
|
|
12-30
|
Class
MT1-F19
|
|
|
12-31
|
Class
MT1-F20
|
|
|
12-32
|
Class
MT1-F21
|
|
|
12-33
|
Class
MT1-F22
|
|
|
12-34
|
Class
MT1-F23
|
|
|
12-35
|
Class
MT1-F24
|
|
|
12-36
|
Class
MT1-F25
|
|
|
12-37
|
Class
MT1-F26
|
|
|
12-38
|
Class
MT1-F27
|
|
|
12-39
|
Class
MT1-F28
|
|
|
12-40
|
Class
MT1-F29
|
|
|
12-41
|
Class
MT1-F30
|
|
|
12-42
|
Class
MT1-F31
|
|
|
12-43
|
Class
MT1-F32
|
|
|
12-44
|
Class
MT1-F33
|
|
|
12-45
|
Class
MT1-F34
|
|
|
12-46
|
Class
MT1-F35
|
|
|
12-47
|
Class
MT1-F36
|
|
|
12-48
|
Class
MT1-F37
|
|
|
12-49
|
Class
MT1-F38
|
|
|
12-50
|
Class
MT1-F39
|
|
|
12-51
|
Class
MT1-F40
|
|
|
12-52
|
Class
MT1-F41
|
|
|
12-53
|
Class
MT1-F42
|
|
|
12-54
|
Class
MT1-F43
|
|
|
12-55
|
Class
MT1-F44
|
|
|
12-56
|
Class
MT1-F45
|
|
|
12-57
|
Class
MT1-F46
|
|
|
12-58
|
Class
MT1-F47
|
|
|
12-59
|
Class
MT1-F48
|
|
|
12-60
|
Class
MT1-F49
|
|
|
12-61
|
Class
MT1-F50
|
|
|
12-62
|
Class
MT1-F51
|
|
|
12-63
|
Class
MT1-F52
|
|
|
12-64
|
Class
MT1-F53
|
|
|
12-65
|
Class
MT1-F54
|
|
|
12-66
|
Class
MT1-F55
|
|
|
12-67
|
Class
MT1-F56
|
|
|
12-68
|
Class
MT1-F57
|
|
|
12-69
|
Class
MT1-F58
|
|
|
12-70
|
Class
MT1-F59
|
|
|
12-71
|
Class
MT1-F60
|
|
|
12-72
|
Class
MT1-F61
|
9
|
Distribution
Dates
|
Middle-Tier
REMIC
1
Class
Designation
|
|
12-73
|
Class
MT1-F62
|
|
|
12-74
|
Class
MT1-F63
|
|
|
12-75
|
Class
MT1-F64
|
|
|
12-76
|
Class
MT1-F65
|
|
|
12-77
|
Class
MT1-F66
|
|
|
12-78
|
Class
MT1-F67
|
|
|
12-79
|
Class
MT1-F68
|
|
|
12-80
|
Class
MT1-F69
|
|
(3)
|
The
Class MT2-R interest is the sole class of residual interests in
Middle-Tier REMIC 2. It does not have an interest rate or a principal
balance.
|
|
(4)
|
This
Middle-Tier REMIC 2 Regular Interest shall have an initial class
principal
amount equal to one-half of the initial Class Principal Amount
of its
Corresponding Class of
Certificates.
|
|
(5)
|
This
Lower Tier Interest shall have an initial class principal amount
equal to
the excess of (i) the Pool Stated Principal Balance as of the Cut-off
Date, over (ii) the aggregate initial Class Principal Amount of
each other
regular interest in Middle-Tier REMIC 2 (other than any interest-only
Lower Tier Interest).
|
|
(6)
|
The
MT2-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 MT1-C Interest on such Distribution
Date.
|
On
each
Distribution Date, interest shall be distributed on the Middle-Tier REMIC
2
Interests based on the above-described interest rates; provided,
however,
that
interest that accrues on the Class MT2-Q Interest shall be deferred in an
amount
equal to one-half of the increase, if any, in the Overcollateralization Amount
for such Distribution Date. Any interest so deferred shall itself bear interest
at the interest rate for the Class MT2-Q Interest. An amount equal to the
interest so deferred shall be distributed as additional principal on the
other
Middle-Tier REMIC 2 Regular Interests having a principal balance in the manner
described under priority (a) below.
On
each
Distribution Date principal shall be distributed, and Realized Losses shall
be
allocated, among the Middle-Tier REMIC 2 Regular Interests in the following
order of priority:
(a) First,
to
the Class MT2-A-1A, Class MT2-A-1B, Class MT2-A-1C, Class MT2-B1, Class
MT2-B2, Class MT2-B3, Class MT2-B4, Class MT2-B5, Class MT2-B6, Class MT2-B7,
and Class MT2-B8 Interests until the principal balance of each such Middle-Tier
REMIC 2 Regular Interest equals 50% of the Class Principal Balance of the
Corresponding Class of Certificates immediately after such Distribution Date;
and
(b) Second,
to the Class MT2-Q Interests, any remaining amounts.
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 REMIC
2
Regular Interests in the same manner that principal is distributed among
such
Middle-Tier REMIC 2 Regular Interests.
On
each
Distribution Date, the Securities Administrator shall be deemed to have
distributed the Prepayment Premium Amounts passed through with respect to
the
Class MT1-F69 and Class MT1-V69 Middle-Tier REMIC 1 Regular Interests on
such
Distribution Date to the Class MT2-Q Interest.
10
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
A-1A
|
$629,826,000.00
|
(1)
|
|
Class
A-1B
|
$262,428,000.00
|
(1)
|
|
Class
A-1C
|
$157,456,000.00
|
(1)
|
|
Class
B-1
|
$
17,281,000.00
|
(1)
|
|
Class
B-2
|
$
7,248,000.00
|
(1)
|
|
Class
B-3
|
$
5,017,000.00
|
(1)
|
|
Class
B-4
|
$
5,574,000.00
|
(1)
|
|
Class
B-5
|
$
5,575,000.00
|
(1)
|
|
Class
B-6
|
$
6,690,000.00
|
(1)
|
|
Class
B-7
|
$
3,902,000.00
|
(1)
|
|
Class
B-8
|
$
5,575,000.00
|
(1)
|
|
Class
C
|
(2)
|
(2)
|
|
Class
P
|
$
100.00
|
(3)
|
|
Class
R
|
(4)
|
(4)
|
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through Rate;” provided, however, for
purposes of the REMIC Provisions, the reference to Net WAC Cap
in such
definition shall be deemed to be a reference to the Middle-Tier
WAC Cap.
To the extent interest payments on any Class of Certificates based
on the
Middle-Tier WAC Cap exceed the interest payments actually made
based on
the stated Pass-Through Rate for such Class, the excess shall be
treated
as having been received by the Certificateholder and then deposited
by
such Certificateholder into the Supplemental Interest Trust pursuant
to
and as further describe in Section 9.01(k) hereof For purposes
of the
REMIC Provisions, for the first three Distribution Dates 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
$8,361,478.42. 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 REMIC 2 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 REMIC 2 Regular Interests (other than the MT2-I,
MT2-IO
and MT2-C Interests), weighted on the basis of the principal balance
of
each such Middle-Tier REMIC 2 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 MT2-I, MT2-IO and MT2-C Interests in the Middle-Tier
REMIC 2.
|
11
|
(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, MT1-R and MT2-R Interests.
|
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein
shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan
in the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to the Servicer), or (y) as provided
in the
Servicing Agreement, to the extent applicable to the Servicer, but in no
event
below the standard set forth in clause (x).
“Account”:
The
Distribution Account, the Basis Risk Reserve Fund, the Basis Risk Cap Account,
the Swap Account, the Servicing Account and 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.
“Additional
Disclosure Notification”:
As
defined in Section 3.20(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.20(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.20(b).
“Additional
Termination Event”:
As
defined in the Swap Agreement.
12
“Adjusted
Cap Rate”:
The
Adjusted Cap Rate for the LIBOR Certificates.
“Adjusted
Middle-Tier WAC”:
With
respect to 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
Middle-Tier REMIC 2 Regular Interests, (other than the MT2-I, MT2-IO and
MT2-C
Interests) 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 MT2-Q Interests to a cap of 0.00%, and
second
(b)
subjecting the interest rate on each of the XX0-X-0X, XX0-X-0X, XX0-X-0X,
XX0-X0, XX0-X0, XX0-X0, MT2-B4, MT2-B5, MT2-B6, MT2-B7 and MT2-B8 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 Master Servicer (including, without limitation, the Trustee
in its capacity as successor Master Servicer) in respect of such Distribution
Date pursuant to Section 5.05 or by the 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.
“Affected
Party”:
As
defined in the Swap Agreement.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
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
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.
13
“Agreement”:
This
Pooling and Servicing Agreement dated as of June 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.
“American
Home”:
American Home Mortgage Corp., and its successors and assigns, in its capacity
as
Originator of the American Mortgage Loans.
“American
Home Mortgage Loans”:
The
Mortgage Loans for which American Home is listed as “Originator” on the Mortgage
Loan Schedule.
“American
Home Purchase Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of May 1,
2006,
as amended by that certain Amendment Number One, dated as of May 1, 2007,
between GCFP, American Home and American Home Servicing, as the same may
be
amended from time to time, and any assignments and conveyances related to
the
Countrywide Mortgage Loans.
“American
Home Servicing”:
American Home Mortgage Servicing, Inc. and its successors and assigns, in
its
capacity as the Servicer of the American Home Mortgage Loans.
“Assignment”:
With
respect to any Mortgage, an assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient, under the
laws
of the jurisdiction in which the related Mortgaged Property is located, to
reflect or record the sale of such Mortgage.
“Available
Funds”:
With
respect to any Distribution Date, an amount equal to (i) the sum, without
duplication, of (a) the aggregate of the Monthly Payments received on or
prior to the related Determination Date (excluding Monthly Payments due in
future Due Periods but received by the related Determination Date) in respect
of
the Mortgage Loans, (b) Net Liquidation Proceeds, Insurance Proceeds
(including from primary mortgage insurance policies), Principal Prepayments
(excluding Prepayment Penalty Amounts), Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans received
during the related Prepayment Period, (c) the aggregate of any amounts received
in respect of REO Properties for such Distribution Date in respect of the
Mortgage Loans, (d) the aggregate of any amounts of Interest Shortfalls
(excluding for such purpose all shortfalls as a result of Relief Act Reductions)
paid by the 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, (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, (f) the aggregate of any Advances made by the Servicer and
Advances made by the Master Servicer for that Distribution Date in respect
of
the Mortgage Loans, (g) the aggregate of any Advances made by the Trustee
(as successor Master Servicer) for such Distribution Date pursuant to Section
7.02 hereof in respect of the Mortgage Loans and (h) the Termination Price
on the Distribution Date on which the Trust Fund is terminated 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, (w) to the extent of amounts attributable to interest or
principal, as applicable, amounts in reimbursement for Advances previously
made
in respect of the Mortgage Loans and other amounts as to which the Servicer,
the
Trustee, the Credit Risk Manager, the Securities Administrator, the Custodian
and the Master Servicer are entitled to be reimbursed pursuant to Section
4.03,
(x) first,
to the
extent of amounts attributable to interest, and second,
if such
amounts are insufficient, to the extent of amounts attributable to principal,
the amount payable to the Trustee, the Master Servicer, the Custodian or
the
Securities Administrator pursuant to Section 8.05, Section 3.30(b) and Section
3.31(c) in respect of Mortgage Loans or if not related to a Mortgage Loan
and
(y) amounts deposited in the Distribution Account, as the case may be, in
error,
in respect of Mortgage Loans.
14
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Cap Account”:
As
defined in Section 5.13(a).
“Basis
Risk Cap Agreement”:
The
basis risk cap agreement dated July 12, 2007, which agreement provides for
the
monthly payment specified therein to the Securities Administrator (for the
benefit of the Certificateholders) commencing with the Distribution Date
in
August 2007 and ending on the Distribution Date in May 2008, by the Basis
Risk
Cap Provider, but subject to the conditions set forth therein together with
any
schedules, confirmations or other agreements relating thereto, attached hereto
as Exhibit V.
“Basis
Risk Cap Amount”:
With
respect to each Distribution Date, the amount of any payment required to
be made
by the Basis Risk Cap Provider pursuant to the terms of the Basis Risk Cap
Agreement deposited into the Basis Risk Cap Account, and any investment earnings
thereon.
“Basis
Risk Cap Payment Date”:
For so
long as the Basis Risk Cap Agreement is in effect or any amounts remain unpaid
thereunder, the Business Day immediately preceding each Distribution
Date.
15
“Basis
Risk Cap Provider”:
The
counterparty to the Basis Risk Cap Agreement, and any successor in interest
or
assigns. Initially, the Basis Risk Cap Provider shall be The Royal Bank of
Scotland plc.
“Basis
Risk Cap Replacement Receipts”:
As
defined in Section 5.14(a).
“Basis
Risk Cap Replacement Receipts Account”:
As
defined in Section 5.14(a).
“Basis
Risk Cap Termination Payment”:
Upon
the designation of an “Early Termination Date” as defined in the Basis Risk Cap
Agreement, the payment required to be made by the Basis Risk Cap Provider
to the
Securities Administrator pursuant to the terms of the Basis Risk Cap Agreement,
and any unpaid amounts due on previous Basis Risk Cap Payment Dates and accrued
interest thereon as provided in the Basis Risk Cap Agreement, as calculated
by
the Basis Risk Cap Provider and furnished to the Trustee.
“Basis
Risk Cap Termination Receipts”:
As
defined in Section 5.14(a).
“Basis
Risk Cap Termination Receipts Account”:
As
defined in Section 5.14(a).
“Basis
Risk Reserve Fund”:
A fund
created as part of the Trust Fund pursuant to Section 5.07 of this Agreement
but
which is not an asset of any of the REMICs.
“Basis
Risk Shortfall”:
With
respect to any Distribution Date and the LIBOR Certificates, the sum
of:
(i) the
excess, if any, of the Interest Distributable Amount that such Class would
have
been entitled to receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the actual
Interest Distributable Amount such Class is entitled to receive for such
Distribution Date (computed without regard to any allocation of Net Interest
Shortfalls);
(ii) any
excess described in clause (i) above remaining unpaid from prior Distribution
Dates; and
(iii) interest
for the applicable Accrual Period on the amount described in clause (ii)
above
based on the applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than
the
Physical Certificates shall be Book-Entry Certificates.
“Bulk
PMI Fee”:
Not
applicable.
“Bulk
PMI Fee Rate”:
Not
applicable.
16
“Bulk
PMI Policy”:
Not
applicable.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, the State of Minnesota, the State
of
Maryland, the State of New York or in the city in which the Corporate Trust
Office of the Trustee or the Securities Administrator is located are authorized
or obligated by law or executive order to be closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust Fund pursuant to the second
paragraph of Section 10.01(a) hereof.
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate, Residual Certificate, Class C Certificate or Class P
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and
with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a given Class (other than the Class C 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,
which initially shall be the Securities Administrator.
“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 Master Servicer, the NIMS Insurer, the Securities Administrator,
the Servicer, the Credit Risk Manager or any Affiliate thereof shall be deemed
not to be outstanding in determining whether the requisite percentage necessary
to effect any such consent has been obtained, except that, in determining
whether the Trustee shall be protected in relying upon any such consent,
only
Certificates which a Responsible Officer of the Trustee knows to be so owned
shall be disregarded.
“Certification
Parties”:
As
defined in Section 3.19.
“Certifying
Person”:
As
defined in Section 3.19.
“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.
17
“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 July 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
related Overcollateralization Floor.
“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 July
2013,
90.875% and thereafter 92.700% 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
related 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 aggregate 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 aggregate 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 July 2013, 92.000% and
thereafter 93.600% 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
related Overcollateralization Floor.
18
“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 aggregate 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 aggregate 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 aggregate 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 July 2013, 93.250% and thereafter 94.600% 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
related Overcollateralization Floor.
“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 aggregate 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
aggregate 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 aggregate 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 July 2013, 94.500% and thereafter 95.600% 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
related Overcollateralization Floor.
19
“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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 July 2013, 96.000% and thereafter 96.800% 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
related Overcollateralization Floor.
“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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 July 2013, 96.875%
and thereafter 97.500% 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
related Overcollateralization Floor.
20
“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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 aggregate 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 July 2013, 98.125% and thereafter 98.500% 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
related Overcollateralization Floor.
“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 REMIC 2 Regular Interests (the Pool
Collateral Balance) as specified in the Preliminary Statement.
21
“Class
I Shortfalls”:
For any
Swap Payment Date, the excess, if any, of the amount owed to the Swap Provider
under the Swap Agreement over the interest accrued on the MT2-IO Interest
in the
Middle-Tier REMIC 2 for the Accrual Period immediately related to the
Distribution Date immediately following such Swap Payment Date.
“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 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)
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”:
July
12, 2007.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Collateral
Account”:
The
account established and maintained by the Securities Administrator in accordance
with the provisions of Section 5.10(b).
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an
amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all shortfalls
as
a result of Relief Act Reductions) required to be paid by the Servicer pursuant
to the Servicing Agreement with respect to such Distribution Date, exceeds
(y)
the aggregate amount actually paid by the Servicer in respect of such
shortfalls; provided,
that
such amount, to the extent payable by the Master Servicer, shall not exceed
the
aggregate Master Servicing Fee that would be payable to the Master Servicer
in
respect of such Distribution Date without giving effect to any Compensating
Interest Payment.
“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.
22
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
With
respect to any Cooperative Loan, (i) the Cooperative Shares, together with
a
stock power in blank; (ii) the original or a copy of the executed Security
Agreement and the assignment of the Security Agreement in blank; (iii) the
original or a copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original, if available,
or
a copy of the executed Recognition Agreement and, if available, the original
assignment of the Recognition Agreement (or a blanket assignment of all
Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing
statement with evidence of recording thereon, which has been filed in all
places
required to perfect the security interest in the Cooperative Shares and the
Proprietary Lease; and (vi) executed UCC amendments (or copies thereof) or
other
appropriate UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with evidence
of
recording thereon (or in a form suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: Client Manager—HarborView Trust 2007-5, or at such
other address as the Trustee may designate from time to time by notice to
the
Certificateholders, the Depositor, the Master Servicer, the Securities
Administrator and the Seller. With respect to the Securities Administrator
and
the Certificate Registrar and (i) presentment of Certificates for registration
of transfer, exchange or final payment, Xxxxx Fargo Bank, National Association,
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention:
Corporate Trust, HarborView Mortgage Loan Trust 2007-5, and (ii) for all
other
purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000 (or for overnight deliveries,
0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000), Attention: Corporate
Trust,
HarborView Mortgage Loan Trust 2007-5.
“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 Balance.
23
|
Initial
Credit Enhancement
Percentage
|
Target
Credit Enhancement
Percentage
before
July
2013 or
Stepdown
Date
|
Target
Credit Enhancement
Percentage
on or after
July
2013 or
Stepdown
Date
|
|
|
Senior
|
5.8500%
|
14.6250%
|
11.7000%
|
|
B-1
|
4.3000%
|
10.7501%
|
8.6001%
|
|
B-2
|
3.6500%
|
9.1249%
|
7.2999%
|
|
B-3
|
3.2000%
|
7.9999%
|
6.3999%
|
|
B-4
|
2.7000%
|
6.7501%
|
5.4001%
|
|
B-5
|
2.2000%
|
5.5000%
|
4.4000%
|
|
B-6
|
1.6000%
|
3.9999%
|
3.1999%
|
|
B-7
|
1.2500%
|
3.1250%
|
2.5000%
|
|
B-8
|
0.7500%
|
1.8749%
|
1.4999%
|
“Credit
Risk Management Agreement”:
Either
(i) any of the credit risk management agreements dated as of the Closing
Date,
entered into by the Servicer and the Credit Risk Manager or (ii) the credit
risk
management agreement dated as of the Closing Date, entered into by the Master
Servicer and the Credit Risk Manager, as applicable.
“Credit
Risk Manager”:
Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and its successors
in interest and assigns.
“Credit
Risk Manager Fee”:
With
respect to any Distribution Date and each Mortgage Loan serviced by the Servicer
that has entered into a Credit Risk Management Agreement, 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”:
0.005%
per annum.
“Credit
Support Annex”:
The
credit support annex to the Swap Agreement dated as of July 14, 2007, between
the Securities Administrator, on behalf of the Supplemental Interest Trust
and
the Swap Provider.
“Custodian”:
For
purposes of this Agreement, the Custodian shall be Deutsche Bank National
Trust
Company and its successor in interest and assign acting as custodian of the
Mortgage Files.
“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.
24
“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.
“Defaulting
Party”:
As
defined in the Swap Agreement.
“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 assign.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at
all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
With
respect to any Distribution Date and each Mortgage Loan, the date each month,
as
set forth in the applicable Servicing Agreement, on which the Servicer
determines the amount of all funds required to be remitted to the Master
Servicer on the Servicer Remittance Date with respect to such Mortgage Loan.
25
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Securities Administrator based upon an
Opinion
of Counsel provided to the Securities Administrator by nationally recognized
counsel acceptable to the Securities Administrator that the holding of an
ownership interest in the Residual Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur liability for any federal
tax
imposed under the Code that would not otherwise be imposed but for the transfer
of an ownership interest in the Residual Certificate to such
Person.
“Distressed
Mortgage Loan”:
Any
Mortgage Loan that at the date of determination is Delinquent in payment
for a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer on behalf of the Trust
Fund
has accepted a deed in lieu of foreclosure.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof for the benefit of the Certificateholders
and
designated “Distribution Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator, on behalf of Deutsche Bank National Trust Company, as Trustee,
in
trust for the registered Holders of HarborView Mortgage Loan Trust Mortgage
Loan
Pass-Through Certificates, Series 2007-5” 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 July 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:
(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, provided,
that
following a downgrade, withdrawal, or suspension of such institution’s rating
below such ratings set forth above, each account shall promptly (and in any
case
within not more than 30 calendar days) be moved to an Eligible Account or
to one
or more segregated trust accounts in the trust department of such institution
which has the required ratings;
26
(ii) an
account or accounts the deposits in which account are secured such that,
as
evidenced by an Opinion of Counsel delivered to the Securities Administrator
and
the Trustee and to each Rating Agency, the Trustee on behalf of the
Certificateholders will have a claim with respect to the funds in the account
or
a perfected first priority security interest against the collateral (which
shall
be limited to Permitted Investments) securing those funds that is superior
to
claims of any other depositors or creditors of the depository institution
with
which such account is maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or
state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iv) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible
Accounts may bear interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class A-1B and Class A-1C Certificates, the Subordinate Certificates
and the
Residual Certificate and (ii) any Class A-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
Offered Certificates.
“Event
of Default”:
In
respect of the Master Servicer, one or more of the events (howsoever described)
set forth in Section 7.01 hereof as an event or events upon the occurrence
and
continuation of which the Master Servicer may be terminated.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Expense
Fee”:
With
respect to any Mortgage Loan, the sum of (i) the Master Servicing Fee, (ii)
the
Servicing Fee, (iii) any Credit Risk Manager Fee, (iv) any Bulk PMI Fee,
if
applicable, and (v) 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.
“Extra
Principal Distribution Amount”:
With
respect to any Distribution Date, is 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)) and (y) the Overcollateralization Deficiency Amount
for
such Distribution Date.
27
“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 August 2037.
“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 Section 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.
“Form
8-K Disclosure Information”:
As
defined in Section 3.20(c).
“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.
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine
the
Loan Rate for such Mortgage Loan.
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Depositor, the Custodian, the Securities
Administrator (in all capacities hereunder) 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.
“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 guaranteed 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.
28
“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 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
June 1, 2007.
“Initial
LIBOR Rate”:
5.320%.
“Initial
Mortgage Loan”:
Any of
the 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 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.
“Interest
Remittance Amount”:
With
respect to any Distribution Date, the portion of the Available Funds for
such
Distribution Date attributable to interest received or advanced with respect
to
the Mortgage Loans plus
Principal Prepayments for the related Prepayment Period to the extent of
Deferred Interest for the related Distribution Date. For the avoidance of
doubt,
(i) the Interest Remittance Amount available on each Swap Payment Date for
distributions to the Swap Account shall be equal to the Interest Remittance
Amount on the related Distribution Date and (ii) the Interest Remittance
Amount
for each Distribution Date shall be calculated without regard to any
distributions to the Swap Account on the related Swap Payment 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
29
(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 Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on Reuters’ “page LIBOR 01”, as of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on Reuters’ “page LIBOR 01” as of 11:00 a.m. (London time), or if
Reuters’ “page LIBOR 01” is not available on such date, the Securities
Administrator will obtain such rate from Bloomberg’s page “BBAM.” If such rate
is not published for such LIBOR Determination Date, LIBOR for such date will
be
the most recently published Interest Settlement Rate. In the event that the
BBA
no longer sets an Interest Settlement Rate, the rate for such date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are
offered by the Reference Banks at approximately 11:00 am (London time) on
such
date to prime banks in the London interbank market. In such event, the
Securities Administrator will request the principal London office of each
of the
Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of
the quotations (rounded upwards if necessary to the nearest whole multiple
of
1/16%). If fewer than two quotations are provided as requested, the rate
for
that date will be the arithmetic mean of the rates quoted by major banks
in New
York City, selected by the Securities Administrator (after consultation with
the
Depositor), at approximately 11:00 a.m. (New York City time) on such date
for
one-month U.S. dollar loan to leading European banks.
(b) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Pass-Through Rate applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
30
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class A-1A, Class A-1B, Class A-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.
“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 Master Servicer or 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.
“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 applicable Servicing Agreement, “Liquidation Proceeds” shall
also include amounts realized in connection with such repurchase, substitution
or sale.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues
on such
Mortgage Loan from time to time in accordance with the provisions of the
related
Mortgage Note.
“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.
31
“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.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
As to
any Distribution Date and each related Mortgage Loan, an amount equal to
the
product of the applicable Master Servicing Fee Rate and the outstanding
Principal Balance of such Mortgage Loan as of the first day of the related
Due
Period.
“Master
Servicing Fee Rate”:
0.0075% per annum.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“Middle-Tier
REMIC 1 Regular Interest”:
As
described in the Preliminary Statement.
“Middle-Tier
REMIC 2 Regular Interest”:
As
described in the Preliminary Statement.
“Middle-Tier
REMIC 1”:
As
described in the Preliminary Statement.
“Middle-Tier
REMIC 2”:
As
described in the Preliminary Statement.
“Middle-Tier
Net WAC Cap”:
For any
Distribution Date, the product of (i) the weighted average of the interest
rates
on the Middle-Tier REMIC 2 Regular Interests for such Distribution Date (other
than the MT2-C, MT2-IO and MT2-I Interests) multiplied by (ii) the quotient
of
30 divided by the actual number of days in the accrual period.
32
“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 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 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 shall be
allocated among each Class of Senior Certificates and the Subordinate
Certificates based on, in the case of each Class of 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. 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.
“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.
33
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of June 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;
|
|
(iii)
|
a
code indicating whether the Mortgaged Property was represented
by the
borrower, at the time of origination, as being
owner-occupied;
|
|
(iv)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit,
(d) a two-
to four-unit residential property, (e) a townhouse or (f) other
type of
Residential Dwelling;
|
|
(v)
|
if
the related Mortgage Note permits the borrower to make Monthly
Payments of
interest only for a specified period of time, (a) the original
number of
such specified Monthly Payments and (b) the remaining number of
such
Monthly Payments as of the Cut-off
Date;
|
|
(vi)
|
the
original months to maturity;
|
|
(vii)
|
the
stated remaining months to maturity from the Cut-off Date based
on the
original amortization schedule;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
[Reserved]
|
|
(x)
|
the
Loan Rate in effect immediately following the Cut-off
Date;
|
|
(xi)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xii)
|
the
stated maturity date;
|
|
(xiii)
|
the
Servicing Fee Rate;
|
|
(xiv)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
34
|
(xv)
|
the
original principal balance of the Mortgage
Loan;
|
|
(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;
|
|
(xviii)
|
the
next Adjustment Date, if
applicable;
|
|
(xix)
|
the
Maximum Loan Rate, if applicable;
|
|
(xx)
|
the
Value of the Mortgaged Property;
|
|
(xxi)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xxii)
|
the
product code;
|
|
(xxiii)
|
whether
the Mortgage Loan is a Lender-Paid Mortgage Insurance Loan, and
the
applicable Lender-Paid Mortgage Insurance Fee Rate, if applicable;
and
|
|
(xxiv)
|
the
Expense Fee Rate therefor.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee (or Master
Servicer) shall not disclose such information except to the extent disclosure
may be required by any law or regulatory or administrative authority;
provided,
however,
that
the Trustee may disclose on a confidential basis any such information to
its
agents, attorneys and any auditors in connection with the performance of
its
responsibilities hereunder.
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate
as of
the Cut-off Date: (1) the number of Mortgage Loans; (2) the current
Principal Balance of the Mortgage Loans; (3) the weighted average Loan Rate
of the Mortgage Loans; and (4) the weighted average remaining months to
maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from
time to time by the Seller in accordance with the provisions of this
Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed
within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in
the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
35
“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 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, related
Master
Servicing Fees and any other accrued and unpaid fees received and retained
in
connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable
Loan
Rate for such Mortgage Loan minus
the
Expense Fee Rate and, commencing on the Distribution Date in June 2017 and
on
each Distribution Date thereafter until the Final Maturity Reserve Termination
Date, the Final Maturity Reserve Rate.
“Net
Monthly Excess Cashflow”:
With
respect to any Distribution Date is equal to 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 Class A-1A, Class A-1B and
Class
A-1C Certificates, (C) the Principal Remittance Amount and (D) 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 the amount of any increases to the Class Principal Balance of
that
Class pursuant to Section 5.08 due to Recoveries.
“Net
Swap Payment”:
With
respect to each Swap Payment Date, the sum of (i) any net payment required
to be
made pursuant to the terms of the Swap Agreement, which net payment shall
not
take into account any Swap Termination Payment, and (ii) any unpaid amounts
due
on previous Swap Payment Dates and accrued interest thereon as provided in
the
Swap Agreement, as calculated by the Swap Provider and furnished to the
Securities Administrator.
36
“Net
Swap Rate”:
For
the LIBOR Certificates and any Distribution Date, the quotient of (i) the
product of (a) the Net Swap Payment or Swap Termination Payment owed to the
Swap
Provider, if any, on or immediately before such Distribution Date, multiplied
by
(b) 12, divided by (ii) the aggregate of the Stated Principal Balances of
the
Mortgage Loans as of the first day of the related Due Period.
“Net
WAC”:
With
respect to the first three Distribution Dates 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 excess, if any, of (a) the Net WAC for such Distribution Date over (b)
the
Net Swap Rate 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.
“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 Master Servicer or 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 A-1A, Class A-1B, Class A-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.
37
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the
Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“One-Month
LIBOR”:
The
average of interbank offered rates for one month U.S. dollar deposits in
the
London market based on quotations of major banks.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor, the Seller or the Servicer, acceptable to the Trustee
or the
Securities Administrator, as applicable, except that any opinion of counsel
relating to (a) the qualification of any REMIC created hereunder as a REMIC
or
(b) compliance with the REMIC Provisions must be an opinion of Independent
counsel.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates other than the Class C, Class P and
Class
R Certificates, the corresponding aggregate amount set forth opposite the
Class
designation of such Class in the Preliminary Statement.
“Originator”:
American Home Mortgage Corp. 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 $5,574,667.89.
“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, 0.75% 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) 1.875%
of the
current Aggregate Collateral Balance prior to the Distribution Date in July
2013
or (II) 1.500% of the current Aggregate Collateral Balance on or after the
Distribution Date in July 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.
38
“Overcollateralized
Amount”:
With
respect to any Distribution Date, an amount equal to (i) the Aggregate
Collateral Balance 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) minus (ii) the sum
of
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:
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(A)
|
The
Pass-Through Rate for the Class A-1A Certificates with respect
to any
Distribution Date shall equal the least of (i) One-Month LIBOR
plus 0.190%
per annum (0.380% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(B)
|
The
Pass-Through Rate for the Class A-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 Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(C)
|
The
Pass-Through Rate for the Class A-1C Certificates with respect
to any
Distribution Date shall equal the least of (i) One-Month LIBOR
plus 0.280%
per annum (0.560% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(D)
|
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 0.500%
per annum (0.750% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(E)
|
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 0.550%
per annum (0.825% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(F)
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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 0.800%
per annum (1.200% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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39
|
(G)
|
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 1.150%
per annum (1.725% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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(H)
|
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 1.750%
per annum (2.625% per annum after the Call Option Date), (ii) the Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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(I)
|
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 Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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(J)
|
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 Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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|
(K)
|
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 Net
WAC Cap for that Distribution Date and (iii) 11.50% per
annum.
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“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof, initially, the
Securities Administrator.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate (other than a Class C, Class P, and Class R
Certificates), 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 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 Master Servicer, the Trustee or any of their respective
Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
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(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;
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40
|
(ii)
|
demand
and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or
trust
company (including the Trustee, the Securities Administrator or
the Master
Servicer or their agents acting in their respective commercial
capacities)
incorporated under the laws of the United States of America or
any state
thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution
or
trust company or its ultimate parent has a short-term uninsured
debt
rating in one of the two highest available rating categories of
each of
the Rating Agencies;
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|
(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;
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|
(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;
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(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;
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(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 Securities Administrator or any affiliate of the Securities
Administrator or for which the NIMS Insurer, the Securities Administrator
or any of its affiliates acts as an adviser as long as such fund
is rated
in at least the second highest rating category by each Rating Agency
rating such fund or vehicle; and each of the Securities Administrator
or
the NIMS Insurer may trade with itself or an affiliate when purchasing
or
selling Permitted Investments; and
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|
(vii)
|
if
previously confirmed in writing to the Securities Administrator,
any other
demand, money market or time deposit, or any other obligation,
security or
investment, as may be acceptable to each Rating Agency in writing
as a
permitted investment of funds backing securities having ratings
equivalent
to its highest initial ratings of the Senior
Certificates;
|
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive
(a)
only interest with respect to the obligations underlying such instrument
or (b)
both principal and interest payments derived from obligations underlying
such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
41
“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 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 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 $53,979,820.
“Prefunding
Account”:
The
separate Eligible Account created and maintained by the Securities Administrator
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 Securities Administrator, on behalf of Deutsche Bank National Trust Company,
as Trustee, in trust for the registered Holders of HarborView Mortgage Loan
Trust Mortgage Loan Pass-Through Certificates, Series 2007-5.” 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) October 10, 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
Master Servicing Fees and Servicing Fees, (iii) any Swap Termination Payment
payable to the Swap Provider as a result of a termination pursuant to Section
10.01 and (iv) all amounts, if any, then due and owing to the Trustee, the
Master Servicer, the Securities Administrator 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.
42
“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
Distribution Amount”:
With
respect to any Distribution Date, the excess of (x) the related Principal
Remittance Amount for such Distribution Date over (y) 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 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, deposited to the Distribution Account during the
related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments deposited in the Distribution Account during the
related Prepayment Period, (d) the principal portion of all Insurance
Proceeds received during the related Prepayment Period with respect to Mortgage
Loans that are not yet Liquidated Mortgage Loans, (e) the principal portion
of all Net Liquidation Proceeds received during the related Prepayment Period
with respect to Liquidated Mortgage Loans other than Recoveries, (f) all
Principal Prepayments (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 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 October
2007
Distribution Date only, any amount remaining in the Prefunding Account at
the
end of the Prefunding Period 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 the avoidance of doubt,
(i)
the Principal Remittance Amount available on each Swap Payment Date for
distributions to the Swap Account shall be equal to the Principal Remittance
Amount on the related Distribution Date and (ii) the Principal Remittance
Amount
for each Distribution Date shall be calculated without regard to any
distributions to the Swap Account on the related Swap Payment Date.
43
“Private
Certificates”:
The
Class C, Class P and Class R 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 July 11, 2007, relating to the initial
offering of the Offered Certificates.
“Purchase
Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of May 1,
2006,
as amended by that certain Amendment Number One, dated as of May 1, 2007,
between GCFP, American Home and American Home Servicing, as reconstituted
pursuant to a Reconstituted Servicing Agreement dated as of July 1, 2007,
by and
among GCFP, Greenwich Capital Acceptance, Inc., American Home and American
Home
Servicing, and acknowledged by Xxxxx Fargo Bank, N.A., as master servicer
and
securities administrator, and by Deutsche Bank National Trust Company, as
trustee, as the same may be amended from time to time, and any assignments
and
conveyances related to the Mortgage Loans.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to
or as
contemplated by Section 2.03 hereof, and as confirmed by an Officers’
Certificate from the Seller to the Trustee and the Securities Administrator,
an
amount equal to the sum of (i) 100% of the Principal Balance thereof as of
the date of purchase (or such other price as is provided in Section 10.01),
plus
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Principal Balance at the applicable Loan Rate (or if the 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.
44
“Qualified
Institutional Buyer”:
As
defined in Rule 144A under the Securities Act.
“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.
“Rating
Agency”:
Each
of Xxxxx’x and S&P and any respective successors thereto. If Xxxxx’x,
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
and
the Master Servicer.
45
“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
reconstitution agreement dated as of June 1, 2007, among the Seller, the
Depositor and the Servicer and acknowledged by the Master Servicer and 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.
“Reference
Bank”:
A
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, which shall not control, be controlled by, or be under
common control with, the Securities Administrator and shall have an established
place of business in London. Until all of the LIBOR Certificates are paid
in
full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each
LIBOR
Determination Date. The Securities Administrator initially shall designate
the
Reference Banks (after consultation with the Depositor). If any such Reference
Bank should be unwilling or unable to act as such or if the Securities
Administrator should terminate its appointment as Reference Bank, the Securities
Administrator shall promptly appoint or cause to be appointed another Reference
Bank (after consultation with the Depositor). The Securities Administrator
shall
have no liability or responsibility to any Person for (i) the selection of
any
Reference Bank for purposes of determining LIBOR or (ii) any inability to
retain
at least four Reference Banks which is caused by circumstances beyond its
reasonable control.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Certificate other than the Class C, Class P 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.
46
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit Q attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the
Master
Servicer, the Securities Administrator, the 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.
“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.
“REMIC
Swap Rate”:
For
each Distribution Date (and the related Accrual Period), a per annum rate
equal
to the product of: (i) the “Rate of Payment (%)” under the Swap Agreement for
such Distribution Date, as set forth in Annex G to the Prospectus, (ii) 2,
and
(iii) the quotient of (a) the actual number of days in the related Accrual
Period divided by (b) 30.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later
than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and
the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
47
“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 Master Servicing Fees and Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances
and
Advances in respect of such REO Property or the related Mortgage Loan, over
(b) the REO Imputed Interest in respect of such REO Property for such
calendar month.
“REO
Property”:
A
Mortgaged Property acquired by the 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 3.20(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 Basis Risk Shortfalls for such Distribution Date with respect
to
the LIBOR Certificates (after giving effect to distributions pursuant to
Section
5.01(k).
48
“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 Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided
that if,
after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002 is amended, (b)
the
Rules referred to in clause (ii) are modified or superseded by any subsequent
statement, rule or regulation of the Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published
by the
Securities and Exchange Commission from time to time pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Master Servicer, materially more onerous
than
the form of the required certification as of the Closing Date, the
Xxxxxxxx-Xxxxx Certification shall be as agreed to by the Master Servicer,
the
Depositor and the Seller following a negotiation in good faith to determine
how
to comply with any such new requirements.
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A. and its successors in interest and assigns, or any successor
securities administrator appointed as herein provided.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
49
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any
one of the Class A-1A, Class A-1B and Class A-1C Certificates.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Principal Balance of each Class of Subordinate
Certificates has been reduced to zero.
“Senior
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 July 2013, 85.375% and thereafter 88.300% 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
related Overcollateralization Floor.
“Servicer”:
American Home Servicing, 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 respective Servicing Agreement.
“Servicing
Advances”:
With
respect to the Servicer and the Master Servicer, as successor servicer,
(including the Trustee in its capacity as successor Master Servicer), all
customary, reasonable and necessary “out of pocket” costs and expenses
(including reasonable attorneys’ fees and expenses) incurred by the Servicer in
the performance of its servicing obligations under the Servicing Agreement
or by
the Master Servicer, as successor servicer, (including the Trustee in its
capacity as successor Master Servicer) in the performance of its obligations
hereunder, including, but not limited to, the cost of (i) the preservation,
restoration, inspection and protection of the Mortgaged Property, (ii) any
enforcement or judicial proceedings, including foreclosures, (iii) the
management and liquidation of the REO Property and (iv) any other expenses
permitted to be reimbursed as Servicing Advances under the Servicing Agreement,
as applicable.
50
“Servicing
Agreement”:
The
reconstituted servicing agreement set forth on Exhibit N hereto and relating
to
the Servicer and the servicing of the related Mortgage Loans by the Servicer,
as
the same may be amended from time to time.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to the Servicer and each Mortgage Loan serviced by the Servicer and
for
any calendar month, the fee payable to the Servicer determined pursuant to
the
Servicing Agreement.
“Servicing
Fee Rate”:
The
rate of 0.375% per annum.
“Servicing
Function Participant”:
Any
Subservicer or Subcontractor of the Servicer, the Master Servicer, the Custodian
and the Securities Administrator, respectively.
“Servicing
Officer”:
Any
officer of the Master Servicer or the Servicer involved in, or responsible
for,
the administration and servicing (or master servicing) of Mortgage Loans,
whose
name and specimen signature appear on a list of servicing officers furnished
by
the Master Servicer, the Servicer or Subservicer, as applicable, to the Trustee,
the Custodian and the Depositor on the Closing Date, as such list may from
time
to time be amended.
“Specified
Representations and Warranties”:
The
representations and warranties listed on Exhibit U hereto.
“Sponsor”:
Greenwich Capital Financial Products, Inc., in its capacity as sponsor under
this Agreement.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in July 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.
51
“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 July 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 related target Credit Enhancement Percentage of the Senior
Certificates.
“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 Master Servicer, the Trustee, the Custodian or the Securities
Administrator.
“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
or Class B-8 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.
“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.
52
“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 P 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 Master
Servicer, the Securities Administrator 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.
“Substitution
Adjustment”:
As
defined in Section 2.03(g) hereof.
“Supplemental
Interest Trust”:
The
trust created pursuant to Section 5.10 of this Agreement and designated as
the
“Supplemental Interest Trust,” the corpus of which shall consist of the Swap
Agreement, the Swap Account and the right to receive the Class C Distributable
Amount as provided in Section 5.01(v).
“Swap
Account:”
The
account created pursuant to Section 5.10(a) of this Agreement.
“Swap
Agreement:”
The
interest rate swap agreement entered into by the Securities Administrator
on
behalf of the Supplemental Interest Trust, which agreement provides for,
among
other things, a Net Swap Payment to be paid pursuant to the conditions provided
therein, together with any schedules, confirmations or other agreements relating
thereto, attached hereto as Exhibit W.
“Swap
Amount:”
With
respect to each Distribution Date and the related Swap Payment Date, the
sum of
any Net Swap Payment and any Swap Termination Payment deposited into the
Swap
Account, and any investment earnings thereon.
“Swap
Default:”
Any
of
the circumstances constituting an “Event of Default” under the Swap
Agreement.
“Swap
LIBOR”:
With
respect to any Distribution Date (and the Accrual Period relating to such
Distribution Date), the product of (i) the Floating Rate Option (as defined
n
the Swap Agreement) for the related Swap Payment Date as calculated by the
Swap
Provider and furnished to the Trustee, (ii) two, and (iii) the quotient of
the
actual number of days in the Accrual Period for the LIBOR Certificates divided
by 30.
53
“Swap
Payment Date”:
For so
long as the Swap Agreement is in effect or any amounts remain unpaid thereunder,
the Business Day immediately preceding each Distribution Date.
“Swap
Provider”:
The
counterparty to the Supplemental Interest Trust under the Swap Agreement,
and
any successor in interest or assigns. Initially, the Swap Provider shall
be The
Royal Bank of Scotland plc.
“Swap
Provider Trigger Event”:
A Swap
Provider Trigger Event shall have occurred if any of a Swap Default with
respect
to which the Swap Provider is a Defaulting Party, a Termination Event with
respect to which the Swap Provider is the sole Affected Party or an Additional
Termination Event with respect to which the Swap Provider is the sole Affected
Party has occurred.
“Swap
Replacement Receipts”:
As
defined in Section 5.12(a).
“Swap
Replacement Receipts Account”:
As
defined in Section 5.12(a).
“Swap
Termination Payment”:
Upon
the designation of an “Early Termination Date” as defined in the Swap Agreement,
the payment required to be made by the Supplemental Interest Trust to the
Swap
Provider, or by the Swap Provider to the Supplemental Interest Trust, as
applicable, pursuant to the terms of the Swap Agreement, and any unpaid amounts
due on previous Swap Payment Dates and accrued interest thereon as provided
in
the Swap Agreement, as calculated by the Swap Provider and furnished to the
Trustee.
“Swap
Termination Receipts”:
As
defined in Section 5.12(a).
“Swap
Termination Receipts Account”:
As
defined in Section 5.12(a).
“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.
“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.
54
“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 40.00% 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
percentages set forth below with respect to such Distribution Date:
|
Distribution
Date Occurring In
|
Percentage
|
|
July
2009 - June 2010
|
0.20%
for the first month plus an additional 1/12th
of
0.25% for each month thereafter
|
|
July
2010 - June 2011
|
0.45%
for the first month plus an additional 1/12th
of
0.30% for each month thereafter
|
|
July
2011 - June 2012
|
0.75%
for the first month plus an additional 1/12th
of
0.35% for each month thereafter
|
|
July
2012 - June 2013
|
1.10%
for the first month plus an additional 1/12th
of
0.40% for each month thereafter
|
|
July
2013 - June 2014
|
1.50%
for the first month plus an additional 1/12th
of
0.15% for each month thereafter
|
|
July
2014 and thereafter
|
1.65%
|
“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 Basis Risk Cap Account, the
Basis
Risk Cap Termination Account, the Basis Risk Cap Replacement Receipts Account
and the Final Maturity Reserve Fund and (viii) all proceeds of the
foregoing. Notwithstanding the foregoing, however, the Trust Fund specifically
excludes (1) all payments and other collections of interest and principal
due on
the Mortgage Loans on or before the Cut-off Date and principal received before
the Cut-off Date (except any principal collected as part of a payment due
after
the Cut-off Date) and (2) all income and gain realized from Permitted
Investments of funds on deposit in the Distribution Account.
55
“Trustee”:
Deutsche Bank National Trust Company, 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
Fee”:
The
annual on-going fee as agreed to by the Trustee and the Master Servicer and
payable by the Master Servicer on behalf of the Trust Fund to the Trustee
from
the Master Servicer’s own funds pursuant to the terms of the separate fee letter
agreement between the Trustee and the Master Servicer.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59, as amended by Prohibited Transaction
Exemption 2007-5 (or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
“United
States Person”
or
“U.S.
Person”:
The
term shall have the meaning set forth in Section 7701(a)(30) of the Code or
successor provisions.
“Unpaid
Basis Risk Shortfall”:
With
respect to each Class of LIBOR 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 10% per annum.
“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), 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 Xxx and Xxxxxxx Mac;
and
56
(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 Certificates; 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 Certificates. 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 Master Servicer, the Securities
Administrator or the Trustee or any of its affiliates shall not be included
in
the calculation of Voting Rights. The Class C and Class P Certificates shall
have no voting rights.
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
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 Initial Mortgage Loan identified on the Mortgage
Loan Schedule, including the related Cut-off Date Principal Balance, all
interest due thereon after the Initial Cut-off Date and all collections in
respect of interest and principal due after the Initial 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 Initial
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 Securities Administrator
in the
Prefunding Account and (vii) all other assets included or to be included
in the
Trust Fund. Such assignment includes all interest and principal due to the
Depositor or the Master Servicer after the Initial Cut-off Date with respect
to
the Initial Mortgage Loans. In exchange for such transfer and assignment,
the
Depositor shall receive the Certificates.
57
Concurrently
with the execution of this Agreement, the Swap Agreement and the Basis Risk
Cap
Agreement shall be delivered to the Securities Administrator. In connection
therewith, the Depositor hereby directs the Securities Administrator (solely
in
its capacity as such) and the Securities Administrator is hereby authorized
to
execute and deliver the Swap Agreement (on behalf of the Supplemental Interest
Trust) and the Basis Risk Cap Agreement for the benefit of the
Certificateholders. The Seller, the Securities Administrator, the Depositor
and
the Certificateholders (by their acceptance of such Certificates) acknowledge
and agree that (i) the Securities Administrator is executing and delivering
the
Swap Agreement solely in its capacity as Securities Administrator of the
Supplemental Interest Trust and the Trust Fund, and not in its individual
capacity and (ii) the Securities Administrator is executing and delivering
the
Basis Risk Cap Agreement solely in its capacity as Securities Administrator
of
the Trust Fund, and not in its individual capacity. The Securities Administrator
shall have no duty or responsibility to enter into any other swap agreement
or
any other basis risk cap agreement upon the expiration or termination of
the
Swap Agreement or the Basis Risk Cap Agreement.
It
is
agreed and understood by the Depositor, the Seller and the Trustee that it
is
not intended that any Mortgage Loan be included in the Trust Fund that is
a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective
as of November 27, 2003, or The Home Loan Protection Act of New Mexico,
effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act, effective
as of
November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as
defined in the Indiana High Cost Home Loan Act, effective as of January 1,
2005.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
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.
58
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the Custodian
as its
designated agent, the following documents or instruments with respect to
each
Mortgage Loan (a “Mortgage
File”)
so
transferred and assigned:
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(i)
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the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of Deutsche
Bank National Trust Company, as Trustee for HarborView Mortgage
Loan Trust
Mortgage Loan Pass-Through Certificates, Series 2007-5, 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;
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(ii)
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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 the Custodian on its behalf) 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;
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(iii)
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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;
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(iv)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment, in form and substance acceptable for recording.
The
Mortgage shall be assigned to “Deutsche Bank National Trust Company, as
Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates, Series 2007-5, without
recourse;”
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59
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(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;
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(vi)
|
the
original Primary Insurance Policy, if any, or certificate, if
any;
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(vii)
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the
original or a certified copy of lender’s title insurance policy;
and
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(viii)
|
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
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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, the Trustee and the Master Servicer),
such actions as are necessary to cause the MERS®
System
to indicate that such Mortgage Loans have been assigned by the Seller to
the
Trustee in accordance with this Agreement (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 2007-5.
Notwithstanding anything herein to the contrary, the Master Servicer and
Securities Administrator are not responsible for monitoring any MERS Mortgage
Loans.
With
respect to each Cooperative Loan, the Seller, on behalf of the Depositor,
does
hereby deliver to the Trustee (or the Custodian) the related Cooperative
Loan
Documents and the Seller shall take (or cause the Servicer to take), at the
expense of the Seller (with the cooperation of the Depositor, the Trustee
and
the Master Servicer) such actions as are necessary under applicable law
(including but not limited to the relevant UCC) in order to perfect the interest
of the Trustee in the related Mortgaged Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust Fund or the
Trustee) acceptable to the Trustee, each Rating Agency, recording in such
states
is not required to protect the Trust Fund’s interest in the related Mortgage
Loans; provided,
further,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the 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, the Trustee and the Master Servicer),
in
each public recording office where the related Mortgages are recorded, each
assignment referred to in Section 2.01(a)(v) above with respect to a Mortgage
Loan that is not a MERS Mortgage Loan.
60
The
Trustee agrees to execute and deliver to the Depositor on or prior to the
Closing Date an acknowledgment of receipt of the original Mortgage Note (with
any exceptions noted), substantially in the form attached as Exhibit G-1
hereto.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(a)(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 Master Servicer
or 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.
(b) 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 Master Servicer,
the Securities Administrator, 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:
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(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;
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62
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(v)
|
each
Subsequent Mortgage Loan may not be 30 or more days contractually
delinquent as of its Subsequent Transfer
Date;
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|
(vi)
|
each
Subsequent Mortgage Loan may not have a final maturity date later
than
July 1, 2037;
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(vii)
|
the
remaining term to stated maturity of each Subsequent Mortgage Loan
will
not exceed 30 years;
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(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 $3,000,000;
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(x)
|
each
Subsequent Mortgage Loan will have a first payment date no later
than
November 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 10
years;
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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 by the Originator
generally in accordance with the underwriting guidelines used by
the
Originator in the origination of the Initial Mortgage
Loans;
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(xvii)
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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:
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(1)
|
a
weighted average margin of not less than 3.05% per
annum;
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(2)
|
a
weighted average remaining term to stated maturity of no more than
360
months;
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(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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63
|
(5)
|
no
more than 13.15% of the Mortgage Loans, by Cut-off Date Collateral
Balance, will relate to investor owned
properties.
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(xviii)
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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)
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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.
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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 Securities Administrator 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
Securities Administrator 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.
SECTION
2.02. Acceptance
by Trustee.
The
Trustee hereby accepts its appointment as the Custodian hereunder and
acknowledges the receipt, subject to the provisions of Section 2.01 and subject
to the review described below and any exceptions noted on the exception report
described in the next paragraph below, of the documents referred to in Section
2.01 above and all other assets included in the definition of “Trust Fund” and
declares that, in its capacity as the Custodian, it holds and will hold such
documents and the other documents delivered to it constituting a Mortgage
File,
and that it holds or will hold all such assets and such other assets included
in
the definition of “Trust Fund” in trust for the exclusive use and benefit of all
present and future Certificateholders.
64
The
Trustee (or the Custodian on its behalf) further agrees, for the benefit
of the
Certificateholders, to 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
by it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (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 its
behalf) 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 its behalf) 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 its behalf) 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.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originator and the
Seller.
(a) Upon
its
discovery of any materially defective document in, or that a document is
missing
from, a Mortgage File or of the breach by the 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, any party hereto shall
promptly provide written notice to each other party hereto and the Securities
Administrator shall promptly notify the Originator of such defect, missing
document or breach and request that the Originator deliver such missing document
or cure such defect or breach within 90 days from the date that the Originator
was notified of such missing document, defect or breach. If the Originator
does
not deliver such missing document or cure such defect or breach in all material
respects during such period, the Trustee shall use commercially reasonable
efforts to enforce the Originator’s obligations under the related Purchase
Agreement; provided
that,
the
Depositor hereby agrees to direct and assist the Trustee in enforcing any
obligations of the Originator. It is understood and agreed that the obligation
of the 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 the Originator respecting
such omission, defect or breach available to the Trustee or any NIMS Insurer
on
behalf of the Certificateholders.
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(b) Upon
its
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, any party hereto shall promptly provide written notice
to
each other party hereto and the Trustee (or the Custodian as its designated
agent) 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 use commercially
reasonable efforts to 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.
(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 Originator’s
obligation to repurchase such Mortgage Loan arises. The Trustee, upon receipt
of
written certification from the Seller or the Originator of the related deposit
in the Distribution Account, shall cause the Custodian to release to the
Seller
or the 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 Originator, as applicable, shall furnish to
it
and as shall be necessary to vest in the Seller or the 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(e) 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.
67
(d) Notwithstanding
anything to the contrary set forth above, with respect to any breach by the
Seller of a representation or warranty made by the Seller herein or in the
Mortgage Loan Purchase Agreement that materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans or the interest therein of the
Certificateholders, if the Seller would not be in breach of such representation
or warranty but for a breach by the Originator of a representation and warranty
made by the 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.
(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, the Trustee
and
the Master Servicer), such actions as are necessary either (i) cause MERS
to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan. 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 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 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 the Servicer or the Custodian, as applicable, and the
Originator, Servicer or Custodian are hereby authorized to deliver such file
to
the Depositor.
68
(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
and the Master Servicer a certification substantially in the form of Exhibit
G-3
hereto with respect to such Qualified Substitute Mortgage Loan or Loans,
with
any exceptions noted thereon. Monthly Payments due with respect to Qualified
Substitute Mortgage Loans in the month of substitution are not part of the
Trust
Fund and will be retained by the Seller. For the month of substitution,
distributions to Certificateholders will reflect the collections and recoveries
in respect of such Deleted Mortgage Loan in the Due Period preceding the
month
of substitution and the Depositor or the Seller, as the case may be, shall
thereafter be entitled to retain all amounts subsequently received in respect
of
such Deleted Mortgage Loan. The Seller shall give or cause to be given written
notice to the Certificateholders that such substitution has taken place,
shall
amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage
Loan from the terms of this Agreement and the substitution of the Qualified
Substitute Mortgage Loan or Loans and shall deliver a copy of such amended
Mortgage Loan Schedule to the Trustee, the Master Servicer and the Securities
Administrator. Upon such substitution, such Qualified Substitute Mortgage
Loan
or Loans shall constitute part of the Trust Fund and shall be subject in
all
respects to the terms of this Agreement and, in the case of a substitution
effected by the Seller, the Mortgage Loan Purchase Agreement, including,
in the
case of a substitution effected by the Seller all representations and warranties
thereof included in the Mortgage Loan Purchase Agreement and all representations
and warranties thereof set forth in Section 2.04 hereof, in each case as
of the
date of substitution.
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine,
and
provide written certification to the Trustee and the Seller as to, the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Securities Administrator for deposit in the
Distribution Account an amount equal to the related Substitution Adjustment,
if
any, and the Custodian on behalf of the Trustee, upon receipt of the related
Qualified Substitute Mortgage Loan or Loans and a written certification from
the
Seller of its remittance of the deposit to the Distribution Account, shall
release to the Seller the related Mortgage File or Files and shall execute
and
deliver such instruments of transfer or assignment, in each case without
recourse, as the Seller shall deliver to it and as shall be necessary to
vest
therein any Deleted Mortgage Loan released pursuant hereto.
69
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. If such Opinion of Counsel cannot be delivered, then
such substitution may only be effected at such time as the required Opinion
of
Counsel can be given.
(h) Upon
discovery by the Seller, the Master Servicer, the Depositor or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall
within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the limitations
set forth in Section 2.03(e), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier
of
discovery or receipt of such notice with respect to such affected Mortgage
Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(b) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage
Loan
repurchased for breach of a representation or warranty.
(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 Securities Administrator
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 Securities
Administrator, the Securities Administrator 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 Loan:
(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 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
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, the Master Servicer
or the Trustee that the substance of such representation and warranty is
inaccurate and such inaccuracy materially and adversely affects the value
of the
related Mortgage Loan or the interest therein of the Certificateholders then,
notwithstanding the Seller’s lack of knowledge with respect to the substance of
such representation and warranty being inaccurate at the time the representation
or warranty was made, such inaccuracy shall be deemed a breach of the applicable
representation or warranty.
It
is
understood and agreed that the representations and warranties incorporated
in
this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Certificateholders notwithstanding
any
restrictive or qualified endorsement or assignment. Upon discovery by any
of the
Depositor, the Seller, the Master Servicer or the Trustee of a breach of
any of
the foregoing representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties, and in no event later than two Business Days
from
the date of such discovery. It is understood and agreed that the obligations
of
the Seller set forth in Section 2.03(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.
71
SECTION
2.05. [Reserved]
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);
(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;
72
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not
result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such
actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of
or
with any court or governmental agency or body of the United States or any
other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations
or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of
its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material
adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement,
as the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
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 Securities Administrator, pursuant to the written request of
the
Depositor executed by an officer of the Depositor, has caused to be executed,
authenticated and delivered to or upon the order of the Depositor, the
Certificates in authorized denominations. The interests evidenced by the
Certificates constitute the entire beneficial ownership interest in the Trust
Fund.
73
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.
(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.
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(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.
(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice
of any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or
any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right,
title
and interest of the Trustee, as assignee of the Depositor, in, to and under
the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect
thereto. The Seller shall, within 30 days after the Closing Date, provide
the
Master Servicer, the Securities Administrator, the Trustee, the Servicer
and the
Depositor a complete list of each party to the HarborView Mortgage Loan Trust
2007-5 transaction.
75
ARTICLE
III
ADMINISTRATION
AND MASTER SERVICING OF THE MORTGAGE LOANS; CREDIT RISK MANAGER
SECTION
3.01. Master
Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicer to service and administer their respective Mortgage Loans in accordance
with the terms of the Servicing Agreement and shall have full power and
authority to do any and all things which it may deem necessary or desirable
in
connection with such master servicing and administration. In performing its
obligations hereunder, the Master Servicer shall act in a manner consistent
with
Accepted Master Servicing Practices. Furthermore, the Master Servicer shall
oversee and consult with the Servicer as necessary from time-to-time to carry
out the Master Servicer’s obligations hereunder, shall receive, review and
evaluate all reports, information and other data provided to the Master Servicer
by the Servicer and shall cause the Servicer to perform and observe the
covenants, obligations and conditions to be performed or observed by the
Servicer under the Servicing Agreement. Notwithstanding anything in this
Agreement, the Servicing Agreement or the Credit Risk Management Agreements
to
the contrary, the Master Servicer shall have no duty or obligation to enforce
the Credit Risk Management Agreements or to supervise, monitor or oversee
the
activities of the Servicer under the related Credit Risk Management Agreements
with respect to any action taken or not taken by the Servicer at the direction
of the Seller or pursuant to a recommendation of the Credit Risk Manager.
The
Master Servicer shall independently and separately monitor the Servicer’s
servicing activities with respect to each related Mortgage Loan, reconcile
the
results of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments to the
Servicer’s and Master Servicer’s records, and provide such reconciled and
corrected information to the Securities Administrator to enable it to prepare
the statements specified in Section 5.04 and any other information and
statements required of the Securities Administrator hereunder.
The
Trustee shall furnish the Servicer and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicer and the Master Servicer to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicer or Master Servicer in exercising
such
powers.
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The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee
for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as the Custodian hereunder) regarding
the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of
the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon written request of the Servicer or the Master Servicer, as
applicable, shall execute and deliver to the Servicer and the Master Servicer
any court pleadings, requests for trustee’s sale or other documents necessary or
desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged
Property; (ii) any legal action brought to obtain judgment against any Mortgagor
on the Mortgage Note or Mortgage; (iii) obtain a deficiency judgment against
the
Mortgagor; or (iv) enforce any other rights or remedies provided by the Mortgage
Note or Mortgage or otherwise available at law or equity.
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each such REMIC as
a
REMIC, and the Trustee and the Securities Administrator shall comply with
any
directions of the Depositor, the Servicer or the Master Servicer to assure
such
continuing treatment. In particular, the Trustee, the Securities Administrator
and the Master Servicer shall not (a) sell or knowingly permit the sale of
all
or any portion of the Mortgage Loans or of any investment of deposits in
an
Account unless such sale is as a result of a repurchase of the Mortgage Loans
or
is otherwise permitted pursuant to this Agreement or any Servicing Agreement
or
the Trustee has received a REMIC Opinion prepared at the expense of the Trust
Fund; and (b) other than with respect to a substitution pursuant to the Mortgage
Loan Purchase Agreement or Section 2.03 or 2.04 of this Agreement or as
otherwise provided in this Agreement or any Servicing Agreement, as applicable,
accept any contribution to any REMIC after the Startup Day without receipt
of a
REMIC Opinion.
77
SECTION
3.03. Monitoring
of Servicer.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust Fund) and the Depositor the compliance by the Servicer with its
duties
under the Servicing Agreement. In the review of the Servicer’s activities, the
Master Servicer may rely upon an officer’s certificate of the Servicer with
regard to the Servicer’s compliance with the terms of the Servicing Agreement.
In the event that the Master Servicer, in its judgment, determines that the
Servicer should be terminated in accordance with the Servicing Agreement,
or
that a notice should be sent pursuant to such Servicing Agreement with respect
to the occurrence of an event that, unless cured, would constitute grounds
for
such termination, the Master Servicer shall notify the Depositor and the
Trustee
thereof, and the Master Servicer shall issue such notice or take such other
action as it deems appropriate with Section 3.03(b).
(b) The
Master Servicer, for the benefit of the Trust Fund, any NIMS Insurer and
the
Certificateholders, shall (acting as agent of the Trust Fund when enforcing
the
Trust Fund’s rights under the Servicing Agreement) (i) enforce the obligations
of the Servicer under the Servicing Agreement, and (ii) in the event that
the
Servicer fails to perform its obligations in accordance with the Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of the Servicer thereunder and act as servicer of the related
Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer which the Master Servicer shall cause the
Trustee to acknowledge; provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions
can be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreement and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the
related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense except as provided below, provided
that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action from the Trust
Fund.
(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of the Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer or a successor Servicer
with
respect to any Servicing Agreement (including, without limitation, (i) all
reasonable legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer
as a
result of an event of default by the Servicer and (ii) all reasonable costs
and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance
with
the Servicing Agreement) are not fully and timely reimbursed by the terminated
Servicer, the Master Servicer shall be entitled to reimbursement of such
reasonable costs and expenses from the Distribution Account.
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(d) The
Master Servicer shall require the Servicer to comply with the remittance
requirements and other obligations set forth in the Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the predecessor Servicer, if any, that
it
replaces or for any errors, acts or omissions of such predecessor Servicer
occurring prior to the termination of the Servicer; provided,
however,
the
Master Servicer shall not be relieved of its liability, if any, as Master
Servicer under this Section 3.03(e).
SECTION
3.04. Fidelity
Bond.
(a) The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on
such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or trustees.
The
Master Servicer shall provide the Trustee and any NIMS Insurer a copy of
such
policy and fidelity bond upon request.
(b) The
Master Servicer shall promptly report to the Trustee and any NIMS Insurer
any
material changes that may occur in the Master Servicer fidelity bond or the
Master Servicer errors and omissions insurance policy and shall furnish to
the
Trustee and any NIMS Insurer, on request, certificates evidencing that such
bond
and insurance policy are in full force and effect. The Master Servicer shall
promptly report to the Trustee and any NIMS Insurer all cases of embezzlement
or
fraud, if such events involve funds relating to the Mortgage Loans. The total
losses relating to the Mortgage Loans, regardless of whether claims are filed
with the applicable insurer or surety, shall be disclosed in such reports
together with the amount of such losses covered by insurance. If a bond or
insurance claim report relating to the Mortgage Loans is filed with any of
such
bonding companies or insurers, the Master Servicer shall promptly furnish
a copy
of such report to the Trustee and any NIMS Insurer. Any amounts relating
to the
Mortgage Loans collected by the Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Distribution Account. Any amounts relating
to
the Mortgage Loans collected by the Servicer under any such bond or policy
shall
be remitted to the Master Servicer to the extent provided in the Servicing
Agreement.
SECTION
3.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i)
to
execute and deliver, on behalf of the Certificateholders, the Trust Fund
and the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Recoveries and (iv) to effectuate, in its own name,
on
behalf the Trust Fund, or in the name of the Trust Fund, foreclosure or other
conversion of the ownership of the Mortgaged Property securing any Mortgage
Loan, in each case, in accordance with the provisions of this Agreement and
the
Servicing Agreement, as applicable; provided,
however,
that
the Master Servicer shall not (and, consistent with its responsibilities
under
Section 3.03, shall not permit the Servicer to) knowingly or intentionally
take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may
be,
would result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to
the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from
a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or the Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the Servicing Agreement and this Agreement, and the Trustee
shall execute and deliver such other documents, as the Master Servicer may
request, to enable the Master Servicer to master service and administer the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
the Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust Fund or in the name of the Trust Fund (or cause the Servicer, pursuant
to the Servicing Agreement, to institute such proceedings either in the name
of
the Servicer on behalf of the Trust, or in the name of the Trust Fund), unless
otherwise required by law or otherwise appropriate. If the Master Servicer
or
the Trustee has been advised that it is likely that the laws of the state
in
which action is to be taken prohibit such action if taken in the name of
the
Trust Fund or the Trustee on its behalf or that the Trust Fund or the Trustee,
as applicable, would be adversely affected under the “doing business” or tax
laws of such state if such action is taken in its name, the Master Servicer
shall join with the Trustee, on behalf of the Trust Fund, in the appointment
of
a co-trustee pursuant to Section 8.10 hereof. In the performance of its duties
hereunder, the Master Servicer shall be an independent contractor and shall
not,
except in those instances where it is taking action in the name of the Trustee,
be deemed to be the agent of the Trustee on behalf of the Trust
Fund.
79
SECTION
3.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the Servicing Agreement and to the extent Mortgage Loans
contain enforceable due-on-sale clauses, the Master Servicer shall cause
the
Servicer to enforce such clauses in accordance with the Servicing Agreement.
If
applicable law prohibits the enforcement of a due-on-sale clause or such
clause
is otherwise not enforced in accordance with the Servicing Agreement, and,
as a
consequence, a Mortgage Loan is assumed, the original Mortgagor may be released
from liability in accordance with the Servicing Agreement.
80
SECTION
3.07. 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
and
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
or
the Master Servicer (in form reasonably acceptable to the Trustee) and as
are
necessary to the prosecution of any such proceedings. The Trustee (or the
Custodian, on behalf of the Trustee), shall, upon the request of the Servicer
or
the Master Servicer, and upon delivery to the Trustee (or the Custodian,
on
behalf of the Trustee) of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit F (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in
its possession or control to the Servicer or the Master Servicer, as applicable.
Such trust receipt shall obligate the Servicer or the Master Servicer to
return
the Mortgage File to the Trustee (or the Custodian on behalf of the Trustee)
when the need therefor by the Servicer or the Master Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt
of a
certificate of a Servicing Officer similar to that hereinabove specified,
the
Mortgage File shall be released by the Trustee (or the Custodian, on behalf
of
the Trustee), to the Servicer or the Master Servicer.
SECTION
3.08. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trust
Fund.
(a) The
Master Servicer shall transmit and the Servicer (to the extent required by
the
Servicing Agreement) shall transmit to the Trustee (or applicable Custodian)
such documents and instruments coming into the possession of the Master Servicer
or the Servicer from time to time as are required by the terms hereof or,
in the
case of the Servicer, by the Servicing Agreement, to be delivered to the
Trustee
(or applicable Custodian). Any funds received by the Master Servicer or by
the
Servicer in respect of any Mortgage Loan or which otherwise are collected
by the
Master Servicer or by the Servicer as Liquidation Proceeds, Insurance Proceeds
or Recoveries in respect of any Mortgage Loan shall be held for the benefit
of
the Trust Fund and the Certificateholders, subject to the Master Servicer’s
right to retain or withdraw from the Distribution Account the Master Servicing
Fee, any additional compensation pursuant to Section 3.14 and any other amounts
provided in this Agreement, and to the right of the Servicer to retain its
Servicing Fee and any other amounts as provided in the Servicing Agreement.
The
Master Servicer shall, and (to the extent provided in the Servicing Agreement)
shall cause the Servicer to, provide access to information and documentation
regarding the Mortgage Loans to (i) the Trustee, any NIMS Insurer, their
agents
and accountants at any time upon reasonable request and during normal business
hours, and (ii) to Certificateholders that are savings and loan associations,
banks or insurance companies, the OTS, the FDIC and the supervisory agents and
examiners of such Office and Corporation or examiners of any other federal
or
state banking or insurance regulatory authority, in each case to the extent
so
required by applicable regulations of the OTS or such other regulatory
authority, such access to be afforded without charge but only upon reasonable
request in writing and during normal business hours at the offices of the
Master
Servicer designated by it. In fulfilling such a request the Master Servicer
shall not be responsible for determining the sufficiency of such
information.
81
(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust Fund and the Certificateholders and shall be and remain the
sole
and exclusive property of the Trust Fund; provided,
however,
that
the Master Servicer and the Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable
to the
Master Servicer or the Servicer under this Agreement or the Servicing
Agreement.
SECTION
3.09. Standard
Hazard Insurance and Flood Insurance Policies.
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall
enforce
any obligation of the Servicer under the Servicing Agreement to maintain
or
cause to be maintained standard fire and casualty insurance and, where
applicable, flood insurance, all in accordance with the provisions of the
Servicing Agreement. It is understood and agreed that such insurance shall
be
with insurers meeting the eligibility requirements set forth in the Servicing
Agreement and that no earthquake or other additional insurance is to be required
of any Mortgagor or to be maintained on property acquired in respect of a
defaulted loan, other than pursuant to such applicable laws and regulations
as
shall at any time be in force and as shall require such additional
insurance.
(b) Pursuant
to Sections 4.01 and 4.02, any amounts collected by the Servicer or the Master
Servicer under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the Servicing Agreement) shall
be
deposited into the Distribution Account, subject to withdrawal pursuant to
Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or the Servicer
in maintaining any such insurance if the Mortgagor defaults in its obligation
to
do so shall be added to the amount owing under the Mortgage Loan where the
terms
of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall
be
recoverable by the Master Servicer or the Servicer pursuant to Sections 4.02
and
4.03.
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SECTION
3.10. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the Servicing Agreement)
cause
the Servicer to prepare and present on behalf of the Trustee, the Trust Fund
and
the Certificateholders all claims under the Insurance Policies and take such
actions (including the negotiation, settlement, compromise or enforcement
of the
insured’s claim) as shall be necessary to realize recovery under such policies.
Any proceeds disbursed to the Master Servicer (or disbursed to the Servicer
and
remitted to the Master Servicer) in respect of such policies, bonds or contracts
shall be promptly deposited in the Distribution Account upon receipt, except
that any amounts realized that are to be applied to the repair or restoration
of
the related Mortgaged Property as a condition precedent to the presentation
of
claims on the related Mortgage Loan to the insurer under any applicable
Insurance Policy need not be so deposited (or remitted).
SECTION
3.11. Maintenance
of the Primary Insurance Policies.
(a) The
Master Servicer shall not take, or permit the Servicer (to the extent such
action is prohibited under the Servicing Agreement) to take, any action that
would result in noncoverage under any applicable Primary Insurance Policy
of any
loss which, but for the actions of such Master Servicer or Servicer, would
have
been covered thereunder. The Master Servicer shall use its best reasonable
efforts to cause the Servicer (to the extent required under the Servicing
Agreement) to keep in force and effect (to the extent that the Mortgage Loan
requires the Mortgagor to maintain such insurance), primary mortgage insurance
applicable to each Mortgage Loan (including any Lender-Paid Primary Insurance
Policy) in accordance with the provisions of this Agreement and the Servicing
Agreement, as applicable. The Master Servicer shall not, and shall not permit
the Servicer (to the extent required under the Servicing Agreement) to, cancel
or refuse to renew any such Primary Insurance Policy that is in effect at
the
date of the initial issuance of the Mortgage Note and is required to be kept
in
force hereunder except in accordance with the provisions of this Agreement
and
the Servicing Agreement, as applicable.
(b) The
Master Servicer agrees to cause the Servicer (to the extent required under
the
Servicing Agreement) to present, on behalf of the Trustee, the Trust and
the
Certificateholders, claims to the insurer under any Primary Insurance Policies
and, in this regard, to take such reasonable action as shall be necessary
to
permit recovery under any Primary Insurance Policies respecting defaulted
Mortgage Loans. Pursuant to Section 4.01, any amounts collected by the Servicer
under any Primary Insurance Policies shall be remitted to the Securities
Administrator for deposit in the Distribution Account, subject to withdrawal
pursuant to Section 4.03.
83
SECTION
3.12. Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available) of any Primary Insurance
Policies, or certificate of insurance if applicable and available, and any
certificates of renewal as to the foregoing as may be issued from time to
time
as contemplated by this Agreement and which come into its possession. Until
all
amounts distributable in respect of the Certificates have been distributed
in
full and the Master Servicer otherwise has fulfilled its obligations under
this
Agreement, the Trustee (or its Custodian, if any, as directed by the Trustee)
shall also retain possession and custody of each Mortgage File in accordance
with and subject to the terms and conditions of this Agreement. The Master
Servicer shall promptly deliver or cause to be delivered to the Trustee (or
the
Custodian, as directed by the Trustee), upon the execution or receipt thereof
the originals of any Primary Insurance Policies, any certificates of renewal,
and such other documents or instruments that constitute portions of the Mortgage
File that come into the possession of the Master Servicer from time to
time.
SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause the Servicer (to the extent required under the
Servicing Agreement) to foreclose upon, repossess or otherwise comparably
convert the ownership of Mortgaged Properties securing such of the Mortgage
Loans as come into and continue in default and as to which no satisfactory
arrangements can be made for collection of delinquent payments, all in
accordance with the Servicing Agreement.
SECTION
3.14. Additional
Compensation to the Master Servicer.
The
Master Servicer shall be entitled to receive the Master Servicing Fee and,
pursuant to Section 4.02(c), certain income and gain realized from any
investment of funds in the Distribution Account shall be for the benefit
of the
Master Servicer as additional compensation. Servicing compensation in the
form
of assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in the Servicing
Agreement, not including any Prepayment Penalty Amounts) shall be retained
by
the Servicer, or the Master Servicer, and shall not be deposited in the
Servicing Account or the Distribution Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus the
Master
Servicing Fee due to the Master Servicer in respect of any Distribution Date
shall be reduced in accordance with Section 5.06.
SECTION
3.15. REO
Property.
(a) In
the
event the Trust Fund (or the Trustee, on behalf of the Trust), acquires
ownership of any REO Property in respect of any related Mortgage Loan, the
deed
or certificate of sale shall be issued to the Trust Fund, or if required
under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust
Fund.
The Master Servicer shall, to the extent provided in the Servicing Agreement,
cause the Servicer to sell any REO Property as expeditiously as possible
(and in
no event later than three years after acquisition) and in accordance with
the
provisions of this Agreement and the Servicing Agreement, as applicable.
Pursuant to its efforts to sell such REO Property, the Master Servicer shall
cause the Servicer to protect and conserve such REO Property in the manner
and
to the extent required by the Servicing Agreement, in accordance with the
REMIC
Provisions and in a manner that does not result in a tax on “net income from
foreclosure property” or cause such REO Property to fail to qualify as
“foreclosure property” within the meaning of Section 860G(a)(8) of the
Code.
84
(b) The
Master Servicer shall, to the extent required by the Servicing Agreement,
cause
the Servicer to deposit all funds collected and received in connection with
the
operation of any REO Property in the Servicing Account.
(c) The
Master Servicer and the Servicer, upon the final disposition of any REO
Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing
Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided
that any
such unreimbursed Advances as well as any unpaid Servicing Fees may be
reimbursed or paid, as the case may be, prior to final disposition, out of
any
net rental income or other net amounts derived from such REO
Property.
(d) To
the
extent provided in the Servicing Agreement, the Liquidation Proceeds from
the
final disposition of the REO Property, net of any payment to the Master Servicer
and the Servicer as provided above shall be deposited in the Servicing Account
on or prior to the applicable Determination Date in the month following receipt
thereof and be remitted by wire transfer in immediately available funds to
the
Master Servicer for deposit into the Distribution Account on the next succeeding
Servicer Remittance Date.
SECTION
3.16. Assessments
of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
2008,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as Custodian, each at its own expense, shall furnish, and each such
party shall cause any Servicing Function Participant engaged by it to furnish
or
otherwise make available, each at its own expense, to the Securities
Administrator and the Depositor (provided
that the
Master Servicer shall furnish copies of each such report received by it from
the
Servicer to the Depositor), a report on an assessment of compliance with
the
Relevant Servicing Criteria that contains (A) a statement by such party of
its
responsibility for assessing compliance with the Relevant Servicing Criteria,
(B) a statement that such party used the Servicing Criteria to assess compliance
with the Relevant Servicing Criteria, (C) such party’s assessment of compliance
with the Relevant Servicing Criteria as of and for the fiscal year covered
by
the Form 10-K required to be filed pursuant to Section 3.20(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.
85
(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 Master Servicer and the Trustee, in its capacity
as
Custodian, shall each forward to the Securities Administrator and the Depositor
the name of each Servicing Function Participant engaged by it and what Relevant
Servicing Criteria will be addressed in the report on assessment of compliance
prepared by such Servicing Function Participant (provided,
however,
that
the Master Servicer need not provide such information to the Securities
Administrator so long as the Master Servicer and Securities Administrator
are
the same Person). When the Master Servicer, the Trustee, in its capacity
as
Custodian, and the Securities Administrator (or any Servicing Function
Participant engaged by them) submit their assessments to the Securities
Administrator, such parties will also at such time include the assessment
(and
attestation pursuant to subsection (b) of this Section 3.16) of each Servicing
Function Participant engaged by it.
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as
Custodian, and any Servicing Function Participant engaged by such parties
as to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria by each such party, and (ii) the Securities Administrator shall
confirm
that the assessments, taken as a whole, address all of the Servicing Criteria
and taken individually address the Relevant Servicing Criteria for each party
as
set forth on Exhibit Q and on any similar exhibit set forth in the Servicing
Agreement in respect of the Servicer and notify the Depositor of any
exceptions.
(iv) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from the Servicer (or the Subservicer on its behalf) with
its own
assessment of compliance to be submitted to the Securities Administrator
pursuant to this Section.
(v) In
the
event the Master Servicer, the Securities Administrator, the Trustee, in
its
capacity as Custodian, or any Servicing Function Participant engaged by such
party is terminated, assigns its rights and obligations under or resigns
pursuant to the terms of this Agreement, or any other applicable agreement,
as
the case may be, such party shall provide a report on assessment of compliance
pursuant to this Section 3.16(a) or to such other applicable agreement 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.
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March
2008,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as Custodian, each at its own expense, shall cause, and each such
party
shall cause any Servicing Function Participant engaged by it to cause, each
at
its own expense, a registered public accounting firm (which may also render
other services to the Master Servicer and the Trustee, in its capacity as
Custodian, the Securities Administrator, or such other Servicing Function
Participants, as the case may be) and that is a member of the American Institute
of Certified Public Accountants to furnish a report to the Securities
Administrator and the Depositor, to the effect that (i) it has obtained a
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.
86
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Master Servicer shall include each such attestation furnished to it by the
Servicer with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(iv) In
the
event the Master Servicer, the Securities Administrator, the Trustee, in
its
capacity as Custodian, 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 3.16(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 obligation in its capacity as Custodian to provide assessments of
compliance and attestations under this Section 3.16 shall terminate upon
the
filing of a Form 15 suspension notice on behalf of the Trust Fund.
Notwithstanding the foregoing, after the occurrence of such event, and
provided
that the
Depositor is not otherwise provided with such reports or copies of such reports,
the Master Servicer and the Securities Administrator shall be obligated to
provide a copy of such reports, by March 31 of each year, to the
Depositor.
87
SECTION
3.17. Annual
Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 10 (with a 5 calendar day cure period) of
each
year, commencing in March 2008, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicer with its own annual statement of compliance to be submitted
to
the Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant
to the
terms of this Agreement, or any applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 with respect to the period of time
it
was subject to this Agreement or any other applicable agreement, as the case
may
be.
SECTION
3.18. 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
Securities Administrator within the time specified in the Servicing Agreement,
the Securities Administrator 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 Securities Administrator 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
3.19. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities Administrator
and
the Master Servicer shall provide, and each such party shall cause any Servicing
Function Participant engaged by it to provide, to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 10 (with a 5 calendar day cure period) of each year in which the Trust
Fund is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up
Certification”)
in the
form of Exhibit M hereto upon which the Certifying Person, the entity for
which
the Certifying Person acts as an officer, and such entity’s officers, directors
and Affiliates (collectively with the Certifying Person, “Certification
Parties”)
can
reasonably rely. A senior officer of the Master Servicer in charge of the
master
servicing function shall serve as the Certifying Person on behalf of the
Trust
Fund. Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In
the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable subservicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section
3.19
with respect to the period of time it was subject to this Agreement or any
applicable subservicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall
not be
required to deliver a Back-Up Certification to each other if both are the
same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification
in the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
88
SECTION
3.20. Reports
Filed with Securities and Exchange Commission.
The
Securities Administrator 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.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under
the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file
each
Form 10-D with a copy of the related Distribution Date Statement attached
thereto. Any disclosure in addition to the Distribution Date Statement that
is
required to be included on Form 10-D (“Additional
Form 10-D Disclosure”)
shall
be reported by the responsible parties set forth on Exhibit O to the Securities
Administrator and Depositor and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
(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 2007-5 transaction
shall be required to provide to the Securities Administrator, the Depositor
and
XxXxx Xxxxxx LLP, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit T hereto (an “Additional
Disclosure Notification”) and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
in Form 10-D pursuant to this paragraph.
89
(iii) After
preparing the Form 10-D, the Securities Administrator 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), the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-D. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed
on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d)(ii)
of this
Section 3.20. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of their respective
duties
under this Section 3.20(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
3.20(a). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other
party
hereto needed to prepare, arrange for execution or file such Form 10-D, and
for
any erroneous, inaccurate or incomplete information or certification provided
to
the Securities Administrator, not resulting from its own negligence, bad
faith
or willful misconduct.
(iv) Form
10-D
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-D with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days.
The
Depositor shall notify the Securities Administrator in writing, no later
than
the fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D if the answer to the questions should be
“no.”
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
90
(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 Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 10-K, in form and substance as required
by the Exchange Act. Each such Form 10-K shall include the following items,
in
each case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and the Servicing
Agreement, (i) an annual compliance statement for the Servicer, the Master
Servicer, the Securities Administrator and any Servicing Function Participant
engaged by such parties (each, with the Custodian, a “Reporting
Servicer”)
as
described under Section 3.17 and in such other agreement, (ii)(A) the annual
reports on assessment of compliance with servicing criteria for each Reporting
Servicer, as described under Section 3.16(a), and (B) if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) identifies any material instance of noncompliance,
disclosure identifying such instance of noncompliance, or if any Reporting
Servicer’s report on assessment of compliance with servicing criteria described
under Section 3.16(a) is not included as an exhibit to such Form 10-K,
disclosure that such report is not included and an explanation why such report
is not included, (iii)(A) the registered public accounting firm attestation
report for each Reporting Servicer, as described under Section 3.16(b), and
(B)
if any registered public accounting firm attestation report described under
Section 3.16(b) identifies any material instance of noncompliance, disclosure
identifying such instance of noncompliance, or if any such registered public
accounting firm attestation report is not included as an exhibit to such
Form
10-K, disclosure that such report is not included and an explanation why
such
report is not included, and (iv) a Xxxxxxxx-Xxxxx Certification as described
in
Section 3.19; provided,
however,
that
the Securities Administrator, at its discretion, may omit from the Form 10-K
any
annual compliance statement, assessment of compliance or attestation report
that
is not required to be filed with such Form 10-K pursuant to Regulation AB.
Any
disclosure or information in addition to (i) through (iv) above that is required
to be included on Form 10-K (“Additional
Form 10-K Disclosure”)
shall
be reported by the responsible parties set forth on Exhibit O to the Depositor
and Securities Administrator and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Additional
Form
10-K Disclosure, except as set forth in the next paragraph.
(ii) As
set
forth on Exhibit S hereto, no later than March 10 (with a 5 calendar day
cure
period) of each year that the Trust Fund is subject to the Exchange Act
reporting requirements, commencing in 2008, (i) the parties to the HarborView
Mortgage Loan Trust 2007-5 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph.
91
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Depositor and XxXxx Xxxxxx
LLP.
Within three Business Days after receipt of such copy, but no later than
March
25th,
the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-K. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-K is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 10-K. A senior officer of the Master Servicer
in charge of the master servicing function shall sign each Form 10-K. If
a Form
10-K cannot be filed on time or if a previously filed Form 10-K needs to
be
amended, the Securities Administrator will follow the procedures set forth
in
subsection (d)(ii) of this Section 3.20. Promptly (but no later than 1 Business
Day) after filing with the Commission, the Securities Administrator will
make
available on its internet website a final executed copy of each Form 10-K
filed
by the Securities Administrator. The parties to this Agreement acknowledge
that
the performance by the Master Servicer and the Securities Administrator of
its
duties under this Section 3.20(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 3.20(b), Section 3.19, Section
3.17, Section 3.16(a) and Section 3.16(b). Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense,
damage
or claim arising out of or with respect to any failure to properly prepare,
execute and/or timely file such Form 10-K, where such failure results from
the
Securities Administrator’s inability or failure to receive, on a timely basis,
any information from any other party hereto needed to prepare, arrange for
execution or file such Form 10-K, and for any erroneous, inaccurate or
incomplete information or certification provided to the Securities Administrator
not resulting from its own negligence, bad faith or willful
misconduct.
(iv) Form
10-K
requires the registrant to indicate (by checking “yes” or “no”) that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days.
The
Depositor shall notify the Securities Administrator in writing, no later
than
March 15th with respect to the filing of a report on Form 10-K, if the answer
to
the questions should be “no.” The Securities Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
92
(c) Reports
Filed on Form 8-K.
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable
Event”),
and
if requested by the Depositor, the Securities Administrator shall prepare
and
file on behalf of the Trust Fund a Form 8-K, as required by the Exchange
Act,
provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance
of the
Certificates. Any disclosure or information related to a Reportable Event
or
that is otherwise required to be included in Form 8-K (“Form
8-K Disclosure Information”)
shall
be reported by the responsible parties set forth on Exhibit O to the Depositor
and Securities Administrator and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no
duty or
liability for any failure hereunder to determine or prepare any Form 8-K
Disclosure Information or any Form 8-K, except as set forth in the next
paragraph.
(ii) As
set
forth on Exhibit R hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than noon New York City time
on
the 2nd Business Day after the occurrence of a Reportable Event (i) the parties
to the HarborView Mortgage Loan Trust 2007-5 transaction shall be required
to
provide to the Securities Administrator and the Depositor, to the extent
known
by a responsible officer thereof, in XXXXX-compatible form (which may be
Word or
Excel documents easily convertible to XXXXX format), or in such other form
as
otherwise agreed upon by the Securities Administrator and such party, the
form
and substance of any Form 8-K Disclosure Information in the form of Exhibit
T
hereto, if applicable, together with an Additional Disclosure Notification
and
(ii) the Depositor will approve, as to form and substance, or disapprove,
as the
case may be, the inclusion of the Form 8-K Disclosure Information. The Seller
will be responsible for any reasonable fees and expenses assessed or incurred
by
the Securities Administrator in connection with including any Form 8-K
Disclosure Information in Form 8-K pursuant to this paragraph.
(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor 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, the
Depositor shall notify the Securities Administrator in writing of any change
to
or approval of such Form 8-K. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 8-K is in final form and the Securities Administrator may proceed with
the
execution and filing of the Form 8-K. A duly authorized representative of
the
Master Servicer shall sign each Form 8-K. If a Form 8-K cannot be filed on
time
or if a previously filed Form 8-K needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d)(ii)
of this
Section 3.20. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will, make available on its internet
website a final executed copy of each Form 8-K filed by the Securities
Administrator. The parties to this Agreement acknowledge that the performance
by
the Master Servicer and the Securities Administrator of their respective
duties
under this Section 3.20(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
3.20(c). Neither the Securities Administrator nor the Master Servicer shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
8-K, where such failure results from the Securities Administrator’s inability or
failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 8-K, not
resulting from its own negligence, bad faith or willful
misconduct.
93
(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 Securities Administrator shall prepare and file
a Form
15 Suspension Notification relating to the automatic suspension of reporting
in
respect of the Trust Fund under the Exchange Act.
(ii) In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor and XxXxx Xxxxxx LLP either via mail, e-mail
or
telephone. In the case of Form 10-D and 10-K, the parties to this Agreement
will
cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Securities Administrator 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
the
Securities Administrator 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
Securities Administrator will electronically notify the Depositor and XxXxx
Xxxxxx LLP and such other parties to the transaction as are affected by such
amendment and such parties will cooperate to prepare any necessary 8-K/A,
10-D/A
or 10-K/A. Any Form 15, Form 12b-25 or any amendment to Form 8-K, 10-D or
10-K
shall be signed by a duly authorized representative of the Master Servicer.
Any
Form 10-K amendment shall be signed by a senior officer of the Master Servicer
in charge of the master servicing function. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of their respective duties under this Section 3.20(d) related
to
the timely preparation, execution and filing of Form 15, a Form 12b-25 or
any
amendment to Form 8-K, 10-D or 10-K is contingent upon each such party
performing its duties under this Section. Neither the Master Servicer nor
the
Securities Administrator shall have any liability for any loss, expense,
damage,
claim arising out of or with respect to any failure to properly prepare,
execute
and/or timely file any such Form 15, Form 12b-25 or any amendments to Forms
8-K,
10-D or 10-K, where such failure results from the Securities Administrator’s
inability or failure to obtain or receive, on a timely basis, any information
from any other party hereto needed to prepare, arrange for execution or file
such Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, and
for
any erroneous, inaccurate or incomplete information or certification provided
to
the Securities Administrator not resulting from its own negligence, bad faith
or
willful misconduct.
94
(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 Securities
Administrator shall sign the Securities Administrator Certification (in the
form
attached hereto as Exhibit S) for the benefit of the Depositor and its officers,
directors and affiliates.
Any
notice or notification required to be delivered by the Securities Administrator
to the Depositor pursuant to this Section 3.20 may be delivered via facsimile
to
(000) 000-0000 or telephonically by calling (000) 000-0000, and any notice
or notification required to be delivered by the Securities Administrator
to
XxXxx Xxxxxx LLP pursuant to this Section 3.20, may be delivered via e-mail
to
XXXXX@xxxxxxxxxxx.xxx.
SECTION
3.21. Additional
Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.22. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.23 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that
(a) the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information
as the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
95
SECTION
3.23. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 or any additional disclosure pursuant to Section
3.20
and including the Depositor, the Master Servicer, the Securities Administrator,
the Trustee in its capacity as Custodian and any Servicing Function Participant
engaged by such party, respectively (each, an “Item
1122 Responsible Party”),
shall
indemnify and hold harmless the Securities Administrator, the Master Servicer
and the Depositor, respectively, and each of their directors, officers,
employees, agents, and affiliates from and against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any material misstatement or
omission in (x) any compliance certificate delivered by it, or by any Servicing
Function Participant engaged by it, pursuant to this Agreement, (y) any
assessment or (except in the case of the Trustee, in its capacity as the
Custodian) attestation delivered by or on behalf of it, or by any Servicing
Function Participant engaged by it, pursuant to this Agreement, or (z) any
Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K
Disclosure Information concerning such party and provided by it, or (c) the
negligence, bad faith or willful misconduct of such Item 1122 Responsible
Party
in connection with its performance hereunder relating to its obligations
as an
Item 1122 Responsible Party. If the indemnification provided for herein is
unavailable or insufficient to hold harmless the Master Servicer, the Securities
Administrator, the Depositor or the Seller, as the case may be, then each
Item
1122 Responsible Party agrees that it shall contribute to the amount paid
or
payable by the Securities Administrator, the Master Servicer and the Depositor,
as applicable, as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer or the Depositor
in such proportion as is appropriate to reflect the relative fault of the
Securities Administrator, the Master Servicer or the Depositor on the one
hand
and such Item 1122 Responsible Party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party
to
this Agreement.
SECTION
3.24. [Reserved]
SECTION
3.25. [Reserved]
SECTION
3.26. [Reserved]
SECTION
3.27. [Reserved]
SECTION
3.28. Closing
Opinion of Counsel.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered
to the
Depositor, the Seller, the Trustee and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by
the
Master Servicer and the enforceability thereof.
96
SECTION
3.29. [Reserved]
SECTION
3.30. Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights
and
franchises as a national banking association under the laws of the jurisdiction
of its incorporation, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage
Loans
and to perform its duties under this Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.31. Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.23 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or
expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred
by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), an Indemnified Person shall have given
the
Master Servicer, any NIMS Insurer and the Depositor written notice thereof
promptly after such Indemnified Person shall have with respect to such claim
or
legal action knowledge thereof. The Indemnified Person’s failure to give such
notice shall not affect the Indemnified Person’s right to indemnification
hereunder. This indemnity shall survive the resignation or removal of the
Trustee, the Master Servicer or the Securities Administrator and the termination
of this Agreement.
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise indemnified by the Master Servicer as
referred to in Subsection (a) above or Subsection (c) below.
97
(c) In
addition to any indemnity required pursuant to Section 3.23 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any
loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.20, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.20
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.20, provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), an Indemnified Person shall have given
the
Securities Administrator and the NIMS Insurer written notice thereof promptly
after such Indemnified Person shall have with respect to such claim or legal
action knowledge thereof. The Indemnified Person’s failure to give such notice
shall not affect the Indemnified Person’s right to indemnification hereunder.
This indemnity shall survive the resignation or removal of the Trustee, the
Master Servicer or the Securities Administrator and the termination of this
Agreement.
SECTION
3.32. Limitations
on Liability of the Master Servicer and Others; Indemnification of Trustee
and
Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.31:
(a) The
Master Servicer has undertaken to perform only such duties as are specifically
set forth in this Agreement. Neither the Master Servicer nor any of the
directors, officers, employees or agents of the Master Servicer shall be
under
any liability to the Indemnified Persons, the Depositor, the Trust Fund or
the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability
which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodian (including for such purpose, the Trustee acting in
its
capacity as the Custodian) and any director, officer, employee or agent of
the
Master Servicer, the Trustee or the Custodian shall be indemnified by the
Trust
Fund and held harmless thereby against any loss, liability or expense (except
as
otherwise provided herein with respect to expenses) (including reasonable
legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or the Servicing Agreement or the transactions contemplated
hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the Servicer thereunder), other than (i)
with
respect to the Master Servicer only, any such loss, liability or expense
related
to the Master Servicer’s failure to perform its duties in compliance with this
Agreement or (ii) with respect to the Master Servicer or Custodian only,
any
such loss, liability or expense incurred by reason of the Master Servicer’s or
the Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its own duties hereunder or by reason of reckless disregard
of
its own obligations and duties hereunder or under a custodial
agreement.
98
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute
or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it
may
deem necessary or desirable with respect to this Agreement and the rights
and
duties of the parties hereto and the interests of the Trust Fund and the
Certificateholders hereunder. In such event, the legal expenses and costs
of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, and the Master Servicer shall be entitled
to be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Subsection 3.32(d) shall affect the Master Servicer’s obligation
to supervise, or to take such actions as are necessary to enforce, the servicing
and administration of the Mortgage Loans pursuant to Sections 3.01 and
3.03.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust Fund might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of the Servicer,
except as otherwise expressly provided herein.
SECTION
3.33. Master
Servicer Not to Resign.
Except
as
provided in Section 3.35, the Master Servicer shall not resign from the
obligations and duties hereby imposed on it except upon a determination that
any
such duties hereunder are no longer permissible under applicable law and
such
impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee and any NIMS Insurer. No such resignation by the
Master
Servicer shall become effective until the Trustee or a successor to the Master
Servicer reasonably satisfactory to the Trustee and any NIMS Insurer shall
have
assumed the responsibilities and obligations of the Master Servicer in
accordance with Section 7.02 hereof. The Trustee shall notify each Rating
Agency
and any NIMS Insurer of the resignation of the Master Servicer.
If,
at
any time, Xxxxx Fargo Bank, N.A., as Master Servicer resigns under this Section
3.33, or sells or assigns its rights and obligations under Section 3.31,
or is
removed as Master Servicer pursuant to Section 7.01, then at such time Xxxxx
Fargo Bank, N.A. also shall resign (and shall be entitled to resign) as
Securities Administrator, Paying Agent and Certificate Registrar under this
Agreement. No such resignation by Xxxxx Fargo Bank, N.A. as Securities
Administrator, Paying Agent or Certificate Registrar under this Agreement
shall
become effective until a successor Securities Administrator, successor
Administrator, successor Paying Agent and successor Certificate Registrar
reasonably satisfactory to the Depositor shall have assumed the responsibilities
and obligations of the Securities Administrator, Paying Agent and Certificate
Registrar in accordance with this Agreement. The Securities Administrator
shall
notify each Rating Agency of the resignation of Xxxxx Fargo Bank, N.A. as
the
Securities Administrator, Paying Agent and Certificate Registrar.
99
SECTION
3.34. Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee. If the
successor master servicer does not agree that the proposed compensation is
fair,
such successor master servicer shall obtain two quotations of market
compensation from third parties actively engaged in the servicing of
single-family mortgage loans; provided,
however,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
SECTION
3.35. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of the Depositor and any NIMS Insurer, in each case, which
consent shall not be unreasonably withheld or delayed, and provided, further,
that:
(i) the purchaser or transferee accepting such assignment and delegation
(a)
shall be a Person which shall be qualified to service mortgage loans for
Xxxxxx
Xxx or Xxxxxxx Mac; (b) shall have a net worth of not less than $10,000,000
(unless otherwise approved by each Rating Agency pursuant to clause (ii)
below);
(c) shall be reasonably satisfactory to the Depositor (as evidenced in writing
signed by the Depositor); and (d) shall execute and deliver to the Trustee
an
agreement, in form and substance reasonably satisfactory to the Trustee,
which
contains an assumption by such Person of the due and punctual performance
and
observance of each covenant and condition to be performed or observed by
it as
master servicer under this Agreement, any custodial agreement from and after
the
effective date of such agreement; (ii) each Rating Agency shall be given
prior
written notice of the identity of the proposed successor to the Master Servicer
and each Rating Agency’s ratings of the Certificates in effect immediately prior
to such assignment, sale and delegation will not be downgraded, qualified
or
withdrawn as a result of such assignment, sale and delegation, as evidenced
by a
letter to such effect delivered to the Master Servicer and the Trustee; and
(iii) the Master Servicer assigning and selling the master servicing shall
deliver to the Trustee and the Depositor an Officer’s Certificate and an
Independent Opinion of Counsel, (delivered at the Master Servicer’s expense)
each stating that all conditions precedent to such action under this Agreement
have been completed and such action is permitted by and complies with the
terms
of this Agreement. No such assignment or delegation shall affect any liability
of the Master Servicer arising prior to the effective date thereof.
100
SECTION
3.36. Reporting
Requirements of the Commission.
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D,
10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01)
in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
SECTION
3.37. 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 Agreements to the Credit Risk Manager
by
the Servicer and/or the Master Servicer. The Credit Risk Manager shall look
solely to the Servicer and/or the Master Servicer for all information and
data
(including loss and delinquency information and data) and loan level information
and data relating to the servicing of the Mortgage Loans and neither the
Securities Administrator nor the Trustee shall have any obligation to provide
any such information to the Credit Risk Manager and shall not otherwise have
any
responsibility with respect to the performance of the Credit Risk
Manager.
SECTION
3.38. 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
Securities Administrator, the Certificateholders or the Depositor for any
action
taken or for refraining from the taking of any action in good faith pursuant
to
this Agreement, in reliance upon information provided by the Servicer and/or
the
Master Servicer under the applicable Credit Risk Management Agreement or
for
errors in judgment; provided,
however,
that
this provision shall not protect the Credit Risk Manager or any such person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its duties
or
by reason of reckless disregard for its obligations and duties under this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may rely
in
good faith on any document of any kind prima facie properly executed and
submitted by any Person respecting any matters arising hereunder, and may
rely
in good faith upon the accuracy of information furnished by the Servicer
and/or
the Master Servicer pursuant to the applicable Credit Risk Management Agreement
in the performance of its duties thereunder and hereunder.
101
SECTION
3.39. Removal
of Credit Risk Manager.
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
Master Servicer shall enforce the obligation of the Servicer to 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 related Servicing Account, the contents of which are
acceptable to the parties hereto as of the date hereof and changes to which
shall not be made unless such changes are made in accordance with the provisions
of Section 12.01 hereof.
(b) [Reserved];
(c) To
the
extent provided in the Servicing Agreement and subject to this Article IV,
on or
before the Servicer Remittance Date, the Servicer shall withdraw or shall
cause
to be withdrawn from the Servicing Account and shall immediately remit or
cause
to be remitted to the Securities Administrator for deposit into the Distribution
Account amounts representing the following collections and payments (other
than
with respect to principal of or interest on the Mortgage Loans due on or
before
the 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;
102
(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.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided
in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or 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 Sections
4.01(c) and 4.02(b), certain amounts otherwise due to the Servicer may be
retained by them and need not be remitted to the Securities
Administrator.
SECTION
4.02. Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of the
Trustee, for the benefit of the Trust Fund and the Certificateholders, the
Distribution Account as a segregated, non-interest bearing trust account
or
accounts, each of 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 Securities Administrator and held
by
the Securities Administrator in trust in its Corporate Trust Office, and
the
Distribution Account and the funds deposited therein shall not be subject
to,
and shall be protected from, all claims, liens, and encumbrances of any
creditors or depositors of the Securities Administrator or the Master Servicer
(whether made directly, or indirectly through a liquidator or receiver of
the
Trustee, the Securities Administrator or the Master Servicer). All Permitted
Investments shall mature or be subject to redemption or withdrawal on or
before,
and shall be held until, the immediately succeeding Distribution Date. The
Securities Administrator, Trustee or their affiliates are permitted to receive
additional compensation that could be deemed to be in their economic
self-interest for (i) serving as investment adviser, administrator, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using affiliates to effect transactions in certain Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Master Servicer and the Securities Administrator shall, promptly upon
receipt from the Servicer on the Servicer Remittance Date deposit in the
Distribution Account as identified by the Master Servicer or the Securities
Administrator and as received by the Master Servicer or the Securities
Administrator, the following amounts:
103
(i) any
amounts withdrawn from a Servicing Account pursuant to Section 4.01(c) and
the
Servicing Agreement and remitted to the Securities Administrator;
(ii) any
amounts required to be deposited in the Distribution Account by the Master
Servicer with respect to the Mortgage Loans pursuant to this Agreement,
including (a) Advances and any Compensating Interest Payments required to
be
made by the Master Servicer to the extent required but not made by the Servicer
and (b) the amount of any Insurance Proceeds or Liquidation Proceeds received
by
or on behalf of the Master Servicer which were not deposited in a Servicing
Account;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or on
behalf
of the Master Servicer which were not deposited in a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller
or the
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;
(v) any
amounts required to be deposited with respect to losses on investments of
deposits in the Distribution Account; and
(vi) any
other
amounts received by or on behalf of the Master Servicer or the Securities
Administrator and required to be deposited in the Distribution Account pursuant
to this Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Securities
Administrator in the name of the Trustee in trust for the benefit of the
Trust
Fund and the Certificateholders in accordance with the terms and provisions
of
this Agreement. The requirements for crediting the Distribution Account shall
be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, payments in the nature of (i) late payment charges or
assumption fees, tax service fees, statement account charges or payoff-charges,
substitution, satisfaction, release and other like fees and charges and (ii)
the
items enumerated in Subsections 4.03(a)(i), (ii), (iii), (iv), (vi), (vii),
(ix)
and (x) with respect to the Securities Administrator, need not be remitted
by
the Servicer to the Master Servicer to the Distribution Account. In the event
that the Master Servicer shall deposit or cause to be deposited to the
Distribution Account any amount not required to be credited thereto, the
Securities Administrator, upon receipt of a written request therefor signed
by a
Servicing Officer of the Master Servicer, shall promptly transfer such amount
to
the Master Servicer, any provision herein to the contrary
notwithstanding.
(c) Funds
deposited in the Distribution Account for the period (the “R Investment Period”)
from the Servicer Remittance Date up to the Master Servicer Investment Period
(as defined below) shall, if invested, be invested at the direction of the
Holder of the Class R Certificate, in the name of the Trustee, or its nominee,
for the benefit of the Certificateholders, in Permitted Investments as follows.
In the absence of such direction, funds will remain uninvested. Funds in
the
Distribution Account for the period from one Business Day immediately preceding
the related Distribution Date through and including the related Distribution
Date (the “Master Servicer Investment Period”) may be invested in Permitted
Investments selected by the Master Servicer (which shall mature not later
than
such applicable Distribution Date). All income and gain realized from any
Permitted Investment of funds deposited in the Distribution Account as described
in this paragraph (i) during the Master Servicer Investment Period shall
be
compensation to the Master Servicer, in payment of its Master Servicer Fee,
and
shall not be part of the Trust Fund and (ii) other than during the Master
Servicer Investment Period shall be paid to the Holder of the Class R
Certificate on the Distribution Date in the following month. For periods
outside
of the R Investment Period, proceeds due to the Holder of the Class R
Certificate shall remain uninvested. The amount of any losses incurred with
respect to any such investments during the Master Servicer Investment Period
shall be deposited in such Distribution Account by the Master Servicer out
of
its own funds, without any right of reimbursement therefor, immediately as
realized. The amount of any losses incurred in respect of any such investments
for any period other than during the Master Servicer Investment Period shall
be
deposited in such Distribution Account by Greenwich Capital Financial Products,
Inc. out of its own funds, without any right of reimbursement therefor,
immediately as realized.
104
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Securities Administrator shall, from time to time, withdraw or transfer funds
from the Distribution Account to the Servicer, to the Master Servicer, to
the
Trustee or to itself for the following purposes:
(i) to
reimburse the Master Servicer or the Servicer for any Advance of its own
funds
or of the Servicer’s own funds, the right of the Master Servicer or 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 and 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 Master Servicer or the Servicer from Insurance Proceeds or
Liquidation Proceeds relating to a particular Mortgage Loan for amounts expended
by the Master Servicer or 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 Master Servicer or 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 Master Servicer or the Servicer from
Liquidation Proceeds from a particular Mortgage Loan for Liquidation Expenses
incurred with respect to such Mortgage Loan;
(iv) to
pay
the Master Servicer or the Servicer, as appropriate, from Liquidation Proceeds
or Insurance Proceeds received in connection with the liquidation of any
Mortgage Loan, the amount which it or the Servicer would have been entitled
to
receive under subclause (viii) 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;
105
(v) to
pay
the Master Servicer or the Servicer from the Purchase Price for any Mortgage
Loan, the amount which it or the Servicer would have been entitled to receive
under subclause (viii) of this Subsection (a) as servicing
compensation;
(vi) to
reimburse the Master Servicer or 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 Master Servicer or the Servicer for any Advance or advance,
after
a Realized Loss has been allocated with respect to the related Mortgage Loan
if
the Advance or advance has not been reimbursed pursuant to clauses (i) and
(vi);
(viii) to
pay
the Master Servicer its monthly Master Servicing Fee and any investment income
and other additional servicing compensation payable pursuant to Section
3.14;
(ix) to
reimburse the Master Servicer or the Securities Administrator for any expenses
recoverable by the Master Servicer or the Securities Administrator pursuant
to
Sections 3.03 and 3.32;
(x) 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;
(xi) to
reimburse the Trustee and the Securities Administrator for expenses, costs
and
liabilities incurred by or reimbursable to it from funds of the Trust Fund
pursuant to Sections 3.31, 3.32 or 8.05, and to reimburse the Trustee for
any
fees, costs and expenses incurred by or reimbursable to it pursuant to Section
2.03(a), 7.01(b), 8.02, 8.05 or 8.07, to the extent not otherwise reimbursed
to
it;
(xii) to
pay to
the Master Servicer all investment earnings on amounts on deposit in the
Distribution Account to what it is entitled under Section 4.02(c);
(xiii) to
reimburse the Administrator for expenses, costs and liabilities incurred
by or
reimbursable to it pursuant to Section 8.19;
(xiv) to
pay
the Credit Risk Manager the Credit Risk Manager Fee;
(xv) to
remove
amounts deposited in error; and
106
(xvi) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) In
addition, on or before the Business Day immediately preceding each Distribution
Date, the Master Servicer shall deposit in the Distribution Account (or remit
to
the Securities Administrator for deposit therein) any Advances or Compensating
Interest Payments, to the extent required to be made but not made by the
Servicer and required to be made by the Master Servicer hereunder with respect
to the Mortgage Loans.
(c) The
Securities Administrator or the Master Servicer shall keep and maintain separate
accounting, on a Mortgage Loan by Mortgage Loan basis, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (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 Master Servicer without being deposited
in the
Distribution Account under Section 4.02(b).
(d) In
order
to comply with its duties under the USA PATRIOT Act of 2001, the Securities
Administrator shall obtain and verify certain information and documentation
from
the other parties hereto, including, but not limited to, each such party's
name,
address and other identifying information.
(e) On
each
Distribution Date, the Securities Administrator, as Paying Agent, shall withdraw
funds on deposit in the Distribution Account to the extent of the aggregate
Available Funds and distribute such amounts to the Holders of the Certificates
and any other parties entitled thereto in accordance with Section
5.01.
SECTION
4.04. [Reserved]
SECTION
4.05. [Reserved]
SECTION
4.06. Prefunding
Account.
On
or
prior to the Closing Date, the Securities Administrator 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 Securities
Administrator for deposit in the Prefunding Account. The Prefunded Amount
shall
be applied to the purchase of Subsequent Mortgage Loans. 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 Securities Administrator shall remit to the Depositor
the applicable Aggregate Subsequent Transfer Amount as payment of the purchase
price for the related Subsequent Mortgage Loans.
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 Securities Administrator 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.
107
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 be invested in the Xxxxx Fargo Advantage Prime
Investment Money Market Fund or comparable investment vehicle, or remain
uninvested. All such Permitted Investments shall be made in the name of the
Trustee, 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. The Securities Administrator in its fiduciary capacity
shall
not be liable for the amount of any loss incurred in respect of any investment
or lack of investment of funds held in the Prefunding Account (other than
as
provided in this Section 4.06) and made in accordance with this
Section 4.06.
ARTICLE
V
FLOW
OF FUNDS
SECTION
5.01. Distributions.
(a) Distributions
From Available Funds.
On each
Distribution Date (or, in the case of payments to the Swap Provider, the
related
Swap Payment 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 Securities Administrator, as
Paying
Agent, shall withdraw funds on deposit in the Distribution Account to the
extent
of Available Funds 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 shall be distributed on each
Distribution Date (or, in the case of payments to the Swap Provider, the
related
Swap Payment 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) first,
for
deposit into the Swap Account, the amount of any Net Swap Payment or Swap
Termination Payment (not due to a Swap Provider Trigger Event) owed to the
Swap
Provider (including amounts remaining unpaid from previous Distribution
Dates);
(B) second,
concurrently, on a pro
rata
basis,
to the Holders of the Class A-1A, Class A-1B and Class A-1C Certificates,
the
related Monthly Interest Distributable Amount and the Unpaid Interest Shortfall
Amount, if any, to which each such Class is entitled;
108
(C) from
the
remaining Interest Remittance Amounts and Principal Prepayments, 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, 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, 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, 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, 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, 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, to the Holders
of the Class B-7 Certificates, the related Monthly Interest Distributable
Amount;
(J) from
the
remaining Interest Remittance Amounts and Principal Prepayments, to the Holders
of the Class B-8 Certificates, the related Monthly Interest Distributable
Amount; and
(K) 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 (or, in the case of payments to the Swap Provider, the
related
Swap Payment 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 shall be distributed in the following
amounts and order of priority:
(A) first,
for
deposit into the Swap Account, any Net Swap Payment or Swap Termination Payment
(not due to a Swap Provider Trigger Event) owed to the Swap Provider (to
the
extent not previously paid or paid from the Interest Remittance Amount);
and
109
(B) second,
to the
Holders of the Class A-A1, Class A-1B and Class A-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;
(C) to
the
Holders of the Class B-1 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(D) to
the
Holders of the Class B-2 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(E) to
the
Holders of the Class B-3 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(F) to
the
Holders of the Class B-4 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(G) to
the
Holders of the Class B-5 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(H) to
the
Holders of the Class B-6 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(I) to
the
Holders of the Class B-7 Certificates, until the Class Principal Balance
thereof
has been reduced to zero;
(J) to
the
Holders of the Class B-8 Certificates, until the Class Principal Balance
thereof
has been reduced to zero; and
(K) 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 (or, in the case of payments to the Swap Provider, the
related
Swap Payment 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 shall be distributed in the
following amounts and order of priority:
(A) first,
for
deposit into the Swap Account, the allocable portion of any Net Swap Payment
or
Swap Termination Payment (not due to a Swap Provider Trigger Event) owed
to the
Swap Provider (to the extent not paid previously or paid from the Interest
Remittance Amount);
(B) second,
to the
Holders of the Class A-A1, Class A-B1 and Class A-1C Certificates, the Senior
Principal Distribution Amount 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
110
(C) to
the
Holders of the Class B-1 Certificates, the Class B-1 Principal Distribution
Amount, until the class principal balance thereof has been reduced to
zero;
(D) to
the
Holders of the Class B-2 Certificates, the Class B-2 Principal Distribution
Amount, until the class principal balance thereof has been reduced to
zero;
(E) to
the
Holders of the Class B-3 Certificates, the Class B-3 Principal Distribution
Amount, until the class principal balance thereof has been reduced to
zero;
(F) to
the
Holders of the Class B-4 Certificates, the Class B-4 Principal Distribution
Amount, until the class principal balance thereof has been reduced to
zero;
(G) to
the
Holders of the Class B-5 Certificates, the Class B-5 Principal Distribution
Amount, until the class principal balance thereof has been reduced to zero;
(H) to
the
Holders of the Class B-6 Certificates, the Class B-6 Principal Distribution
Amount, until the class principal balance thereof has been reduced to
zero
(I) to
the
Holders of the Class B-7 Certificates, the Class B-7 Principal Distribution
Amount, until the class principal balance thereof has been reduced to zero;
(J) to
the
Holders of the Class B-8 Certificates, the Class B-8 Principal Distribution
Amount, until the class principal balance thereof has been reduced to zero;
and
(K) 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 (or, in the case of payments to the Swap Provider, the
related
Swap Payment 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:
111
(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;
(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;
(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;
(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;
(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,
on a
pro
rata
basis
based on the amount of Basis Risk Shortfalls remaining unpaid, 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;
(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;
(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
Swap Provider, any Swap Termination Payment resulting from a Swap Provider
Trigger Event;
(J) to
the
Holders of the Class C Certificates, the Class C Distributable Amount;
112
(K) on
the
Distribution Date immediately following the last Distribution date on which
Prepayment Penalty Amounts can be collected by the Servicer, to the Holders
of
the Class P Certificates, $100.00; and
(L) 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) [Reserved].
(e) Distributions
on Physical Certificates.
The
Securities Administrator 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.
(g) [Reserved].
(h) On
each
Distribution Date, the Securities Administrator, 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.
(i) [Reserved].
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(j) On
each
Distribution Date, the Trustee shall distribute the Basis Risk Cap Amount
for
such date as follows:
(i) to
the
LIBOR Certificates, on a pro
rata based
on
their respective Class Principal Balances, any Basis Risk Shortfalls, to
the
extent unpaid;
(ii) if
applicable, to the Basis Risk Cap Termination Receipts Account for application
to the purchase of a replacement Basis Risk Cap Agreement(s) pursuant to
Section
5.14(b); and
(iii) to
the
Class C Certificates, all amounts remaining.
(k) On
each
Distribution Date (or, with respect to clauses (i), (ii), (ix) and (x) below,
on
the related Swap Payment Date), after all distributions pursuant to Sections
5.01(a) and (j) have been made, the Trustee shall distribute the Swap Amount
for
such date as follows:
(i) to
the
Swap Provider, any Net Swap Payment owed to the Swap Provider pursuant to
the
Swap Agreement for such Swap Payment Date;
(ii) to
the
Swap Provider, any Swap Termination Payment not due to a Swap Provider Trigger
Event owed to the Swap Provider pursuant to the Swap Agreement for such Swap
Payment Date;
(iii) concurrently,
to the Senior Certificates, Monthly Interest Distributable Amount and the
related Unpaid Interest Shortfall Amount for each such Class and such
Distribution Date, to the extent unpaid (any shortfall in Monthly Interest
Distributable Amount and the related Unpaid Interest Shortfall Amount to
be
allocated among such Classes in proportion to the amount of Monthly Interest
Distributable Amount and the related Unpaid Interest Shortfall Amount that
would
have otherwise been distributable thereon);
(iv) to
the
Subordinate Certificates, in accordance with the Subordinate Priority, Monthly
Interest Distributable Amount and the related Unpaid Interest Shortfall Amount
for each such Class and such Distribution Date to the extent unpaid;
(v) to
the
LIBOR Certificates, any amount necessary to maintain the Overcollateralization
Target Amount as specified in Sections 5.01(ii) and (iii) above for such
Distribution Date, for application pursuant to the priorities set forth in
such
Sections, after giving effect to distributions pursuant to such Sections;
provided,
however,
that
the sum of all such amounts distributed pursuant to this Section shall not
exceed the aggregate amount of cumulative Realized Losses incurred from the
Cut-off Date through the last day of the related Collection Period less any
amounts previously distributed pursuant to this Section;
(vi) to
the
Subordinate Certificates, sequentially, any Allocated Realized Loss Amounts
remaining unpaid after distribution of Net Monthly Excess Cashflow, to the
extent unpaid;
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(vii) to
the
Senior Certificates, on a pro
rata
basis
based on the amount of Basis Risk Shortfalls remaining unpaid, any Basis
Risk
Shortfalls, to the extent unpaid;
(viii) to
the
Subordinate Certificates, sequentially, any Basis Risk Shortfalls, to the
extent
unpaid;
(ix) if
applicable, to the Swap Termination Receipts Account for application to the
purchase of a replacement swap agreement pursuant to Section
5.12(a);
(x) to
the
Swap Provider, any Swap Termination Payment due to a Swap Provider Trigger
Event
owed to the Swap Provider pursuant to the Swap Agreement; and
(xi) to
the
Class C Certificates, all amounts remaining in the Swap Account.
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.
SECTION
5.03. Allocation
of Realized Losses.
(a) On
or
prior to each Distribution Date, the Securities Administrator shall aggregate
the loan-level information provided by the Master Servicer with respect to
the
total amount of Realized Losses, if any, with respect to the Mortgage Loans
for
the related Distribution Date and include such information in the Distribution
Date Statement.
(b) On
each
Distribution Date, Realized Losses that occurred during the related Prepayment
Period shall be allocated 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
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(iv) with
respect to such losses, to the Class A-1A, Class A-1B and Class A-1C
Certificates, sequentially, first, to the Class A-1C Certificates, second,
to
the Class A-1B Certificates and third, to the Class A-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.
(e) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b)
or
(c) shall be accomplished by reducing the Certificate Principal Balance thereof
immediately following the distributions made on the related Distribution
Date in
accordance with the definition of “Certificate Principal Balance.”
SECTION
5.04. Statements.
(a) On
each
Distribution Date, the Securities Administrator shall make available to the
Trustee, each Certificateholder, the Seller, any NIMS Insurer, the Master
Servicer and each Rating Agency, a statement based, as applicable, on loan-level
information obtained from the Master Servicer, the Swap Provider, the Basis
Risk
Cap Provider and the Servicer (the “Distribution
Date Statement”)
as to
the distributions to be made or made, as applicable, on such Distribution
Date.
The Distribution Date Statement shall include the following 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, Master Servicing Fees and Credit Risk
Manager Fees for the related Due Period;
(v) the
amount of Advances for the related Due Period and the amount of unreimbursed
Advances;
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(vi) the
Pool
Balance and the Pool Collateral Balance for such Distribution Date;
(vii) the
aggregate Principal Balance of the MTA Indexed Mortgage Loans at the Close
of
Business at the end of the related Due Period;
(viii) 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;
(ix) 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;
(x) 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;
(xi) the
book
value (if available) of any REO Property as of the Close of Business on the
last
Business Day of the calendar month preceding the Distribution Date, and,
cumulatively, the total number and cumulative principal balance of all REO
Properties as of the Close of Business of the last day of the preceding Due
Period;
(xii) the
aggregate amount of any Principal Prepayments, net Principal Prepayments
or
other unscheduled recoveries of principal made during the related Prepayment
Period;
(xiii) the
aggregate amount of Realized Losses incurred during the related Due Period
and
the cumulative amount of Realized Losses and the amount of Realized Losses,
if
any, allocated to each Class of Certificates after giving effect to any
distributions made thereon, on such Distribution Date;
(xiv) the
Class
Principal Balance of each Class of Certificates after giving effect to any
distributions made thereon, on such Distribution Date;
(xv) 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;
(xvi) 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;
(xvii) the
Available Funds;
(xviii) the
Pass-Through Rate and related Adjusted Cap Rate for each Class of Certificates
for such Distribution Date;
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(xix) the
aggregate Principal Balance of Mortgage Loans purchased hereunder by the
Seller
during the related Due Period;
(xx) [Reserved];
(xxi) current
Recoveries;
(xxii) cumulative
Recoveries;
(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) the
amount of Deferred Interest and Net Deferred Interest, if any;
(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
Overcollateralized Amount for that Distribution Date;
(xxviii) the
Overcollateralization Target Amount for that Distribution Date;
(xxix) the
amount of any Class P Distributable Amount;
(xxx) the
amount on deposit in the Prefunding Account (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);
(xxxi) the
amount of any payments made by the Basis Risk Cap Provider to the Basis Risk
Cap
Account pursuant to Section 5.13;
(xxxii) the
aggregate Principal Balance and number of Subsequent Mortgage Loans purchased
in
the Prefunding Period; and
(xxxiii) the
amount of any Net Swap Payment to the Supplemental Interest Trust made pursuant
to Section 5.10, any Net Swap Payment to the Swap Provider made pursuant
to
Section 5.10, any Swap Termination Payment to the Supplemental Interest Trust
made pursuant to Sections 5.10 and any Swap Termination Payment to the Swap
Provider made pursuant to Section 5.10.
The
Securities Administrator shall make the Distribution Date Statement (and,
at its
option, any additional files containing the same information in an alternative
format) available each month to Certificateholders and the parties to this
Agreement via the Securities Administrator’s internet website. The Securities
Administrator’s internet website shall initially be located at “xxx.xxxxxxx.xxx.”
Assistance in using the website can be obtained by calling the Securities
Administrator’s customer service desk at 1-866-846-4526. Parties that are unable
to use the above distribution option are entitled to have a paper copy mailed
to
them via first class mail by calling the customer service desk and indicating
such. The Securities Administrator shall have the right to change the way
such
reports are distributed in order to make such distribution more convenient
and/or more accessible to the parties, and the Securities Administrator shall
provide timely and adequate notification to all parties regarding any such
change.
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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 Initial
Cut-off Date.
In
addition to the information listed above, such Distribution Date Statement
or
the report on Form 10-D for such Distribution Date shall also include any
other
information required by Item 1121 (§ 229.1121) of Regulation AB.
(b) Within
a
reasonable period of time after the end of each calendar year, the Securities
Administrator shall, upon written request, furnish to 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 Securities Administrator
shall
be deemed to have been satisfied to the extent that substantially comparable
information shall be prepared and furnished by the Securities Administrator
to
Certificateholders pursuant to any requirements of the Code as are in force
from
time to time.
(c) On
each
Distribution Date, the Securities Administrator shall supply an electronic
tape
to Bloomberg Financial Markets, Inc. in a format acceptable to Bloomberg
Financial Markets, Inc. on a monthly basis, and shall supply an electronic
tape
to Loan Performance and Intex Solutions in a format acceptable to Loan
Performance and Intex Solutions on a monthly basis.
SECTION
5.05. Remittance
Reports; Advances.
(a) No
later
than the 10th
calendar
day of each month, the Master Servicer shall deliver to the Securities
Administrator by telecopy or electronic mail (or by such other means as the
Master Servicer and the Securities Administrator may agree from time to time)
the Remittance Report with respect to the related Distribution Date. No later
than the Close of Business New York time on the fifth Business Day prior
to the
related Distribution Date, the Master Servicer shall deliver or cause to
be
delivered to the Securities Administrator in addition to the information
provided on the Remittance Report, such other loan-level information reasonably
available to it with respect to the Mortgage Loans as the Securities
Administrator may reasonably require to perform the calculations necessary
to
make the distributions contemplated by Section 5.01. The Securities
Administrator shall have no duty or obligation to calculate, recompute or
verify
any information in any Remittance Report or other loan level information
that it
receives from the Servicer.
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(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 Master Servicer
shall, on the Business Day immediately preceding the related Distribution
Date,
deposit in the Distribution Account an amount equal to such deficiency, net
of
the Servicing Fee and the Master Servicing Fee, for such Mortgage Loan except
to
the extent the Master Servicer determines any such Advance to be Nonrecoverable
from Liquidation Proceeds, Insurance Proceeds or future payments on the Mortgage
Loan for which such Advance was made. Subject to the foregoing, the Master
Servicer shall continue to make such Advances through the date that the Servicer
is required to do so under the Servicing Agreement. If the Master Servicer
determines that an Advance is Nonrecoverable, it shall, on or prior to the
related Distribution Date, present an Officer’s Certificate to the Securities
Administrator, the NIMS Insurer and the Trustee (i) stating that the Master
Servicer elects not to make a Advance in a stated amount and (ii) detailing
the
reason it deems the advance to be Nonrecoverable.
SECTION
5.06. Compensating
Interest Payments.
The
amount of the Master Servicing Fee payable to the Master Servicer in respect
of
any Distribution Date shall be reduced (but not below zero) by the amount
of any
Compensating Interest Payment for such Distribution Date, but only to the
extent
that Interest Shortfalls relating to such Distribution Date are required
to be
paid but are not actually paid by the Servicer on the Servicer Remittance
Date.
Such amount shall not be treated as an Advance and shall not be reimbursable
to
the Master Servicer.
SECTION
5.07. Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Securities Administrator shall establish and maintain in
its
name, in trust for the benefit of the holders of the LIBOR Certificates,
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 Securities Administrator 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 Securities Administrator, as Paying Agent for the
Trustee, shall withdraw from the Basis Risk Reserve Fund, the amount of such
Basis Risk Shortfall for distribution on such Distribution Date pursuant
to
section 5.01 (a)(iv)(F).
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(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 Securities Administrator, 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 be invested in the
Xxxxx Fargo Advantage Prime Investment Money Market Fund or comparable
investment vehicle, or 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.
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 such Class for
such
Distribution Date as follows:
(i) first,
the
Class Principal Balance of each Class of Senior Certificates 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. [Reserved]
SECTION
5.10. Supplemental
Interest Trust.
(a) A
separate trust is hereby established (the “Supplemental Interest Trust”), the
corpus of which shall be held by the Securities Administrator, in trust,
for the
benefit of the Certificateholders. The Securities Administrator, on behalf
of
the Supplemental Interest Trust, shall establish an account (the “Swap
Account”). The Swap 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 monies, including, without limitation, other monies of the Securities
Administrator held by the Securities Administrator pursuant to this Agreement.
121
(b) In
addition, on the Closing Date, the Securities Administrator, on behalf of
the
Supplemental Interest Trust, shall establish an account (the “Collateral
Account”)
into
which funds shall be deposited pursuant to Section 5.10(e). 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 monies,
including, without limitation, other monies of the Securities Administrator
held
pursuant to this Agreement.
(c) The
Securities Administrator shall deposit into the Swap Account any Net Swap
Payment required pursuant to Sections 5.01(a)(i), (ii) and (iii), any Swap
Termination Payment required pursuant to Sections 5.01(a)(i), (ii), (iii)
and
(iv) and 5.01(k), any amounts received from the Swap Provider under the Swap
Agreement, and shall distribute from the Swap Account any Net Swap Payment
required pursuant to Section 5.01(k) or Swap Termination Payment required
pursuant to Sections 5.01(a)(i), (ii), (iii) and (iv) and 5.01(k), as
applicable.
(d) Funds
in
the Swap Account shall be invested in Permitted Investments. Any earnings
on
such amounts shall be distributed on each Distribution Date pursuant to Section
5.01(k). The Class C Certificates shall evidence ownership of the Swap Account
for federal income tax purposes and the Holder thereof shall direct the
Securities Administrator, in writing, as to investment of amounts on deposit
therein. GCFP 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 Swap Account, such funds shall remain
uninvested. Any amounts on deposit in the Swap Account in excess of the Swap
Amount on any Distribution Date shall be held for distribution pursuant to
Section 5.01(k) on the following Distribution Date.
(e) Funds
or
collateral required to be held pursuant to the Credit Support Annex shall
be
deposited into the Collateral Account. Funds posted by the Swap Provider
(or its
credit support provider) in the Collateral Account shall be invested in
Permitted Investments at the written direction of the Swap Provider. Any
interest earnings on such amounts shall be remitted to the Swap Provider
pursuant to the terms of the Credit Support Annex. For federal income tax
purposes, the Swap Provider shall be considered owner of funds deposited
in the
Collateral Account. The Securities Administrator shall not be liable for
any
losses incurred on such investments. In the absence of written instructions
from
the Swap Provider (or its credit support provider) as to investment of funds
on
deposit in the Collateral Account, such funds shall remain uninvested. On
the
first Distribution Date immediately following any Swap Payment Date as to
which
a shortfall exists with respect to a Net Swap Payment or a Swap Termination
Payment owed by the Swap Provider as a result of its failure to make payments
pursuant to the Swap Agreement, amounts necessary to cover such shortfall
shall
be removed from the Collateral Account, remitted to the Swap Account and
distributed as all or a portion of such Net Swap Payment or Swap Termination
Payment pursuant to Section 5.02(k). Any amounts on deposit in the Collateral
Account required to be returned to the Swap Provider (or its credit support
provider) as a result of (i) the termination of the Swap Agreement, (ii)
the
procurement of a guarantor, (iii) the reinstatement of required ratings or
(iv)
otherwise pursuant to the Swap Agreement, shall be released directly to the
Swap
Provider pursuant to the terms of the Credit Support Annex.
(f) Upon
termination of the Trust Fund, any amounts remaining in the Swap Account
shall
be distributed pursuant to the priorities set forth in Section
5.01(k).
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(g) Upon
termination of the Trust Fund, any amounts remaining in the Collateral Account
shall be distributed as required pursuant to the terms of the Credit Support
Annex;
(h) It
is the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Supplemental Interest Trust 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 Supplemental Interest Trust
for
federal income tax purposes. The Securities Administrator shall not be
responsible for any entity level tax reporting for the Supplemental Interest
Trust.
(i) To
the
extent that the Supplemental Interest Trust is determined to be a separate
legal
entity from the Securities Administrator, any obligation of the Securities
Administrator under the Swap Agreement shall be deemed to be an obligation
of
the Supplemental Interest Trust.
(j) In
the
event that the Swap Provider fails to perform any of its obligations under
the
Swap Agreement (including, without limitation, its obligations to make any
payment or transfer collateral), or breaches any of its representations and
warranties under the Swap Agreement or in the event that an Event of Default,
Termination Event, or Additional Termination Event occurs (as such terms
are
defined in the Swap Agreement), the Securities Administrator, on behalf of
the
Supplemental Interest Trust, shall (upon a Responsible Officer of the Securities
Administrator receiving written notice or having actual knowledge of the
occurrence thereof), no later than the next Business Day following such failure,
breach or occurrence, notify the Swap Provider and give any notice of such
failure and make any demand for payment pursuant to the Swap Agreement. In
the
event that the Swap Provider’s obligations under the Swap Agreement are at any
time guaranteed by a third party, then to the extent that the Swap Provider
fails to make any payment or delivery required under terms of the Swap
Agreement, the Securities Administrator, on behalf of the Supplemental Interest
Trust, shall (upon a Responsible Officer of the Securities Administrator
receiving written notice or having actual knowledge 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.
SECTION
5.11. Rights
of Swap Provider.
The
Swap
Provider 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, upon designation
of an “Early Termination Date” (as defined in the Swap Agreement), to enforce
its rights under this Agreement, which rights include but are not limited
to the
obligation of the Securities Administrator (A) to deposit any Net Swap Payment
required pursuant to 5.01(a)(i), (ii) and (iii), and any Swap Termination
Payment required pursuant to Sections 5.01(a)(i), (ii), (iii) and (iv) and
5.01(g), into the Swap Account, (B) to pay any Net Swap Payment required
pursuant to Section 5.01(a)(i), (ii) and (iii), as applicable, or Swap
Termination Payment required pursuant to Sections 5.01(a)(i), (ii), (iii)
and
(iv) and 5.01(k), as applicable to the Swap Provider and (C) to establish
and
maintain the Swap Account, to make such deposits thereto, investments therein
and distributions therefrom as are required pursuant to Section 5.10. For
the
protection and enforcement of the provisions of this Section the Swap Provider
shall be entitled to such relief as can be given either at law or in
equity.
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SECTION
5.12. Swap
Agreement Termination Receipts.
(a) In
the
event of an “Early Termination Date” as defined under the Swap Agreement, (i)
any Swap Termination Payment made by the Swap Provider to the Swap Account
and
paid pursuant to Sections 5.01(a)(i), (ii), (iii) and (iv) and 5.01(k), as
applicable (“Swap Termination Receipts”) will be deposited in a segregated
non-interest bearing account which shall be a subaccount of the Swap Account
and
shall be an Eligible Account established by the Securities Administrator
(the
“Swap Termination Receipts Account”) and (ii) any amounts received from a
replacement Swap Provider (“Swap Replacement Receipts”) will be deposited in a
segregated non-interest bearing account which shall be a subaccount of the
Swap
Account and which shall be an Eligible Account established by the Securities
Administrator (the “Swap Replacement Receipts Account”). The Securities
Administrator shall invest, or cause to be invested, funds held in the Swap
Termination Receipts Account and the Swap Replacement Receipts Account in
time
deposits of the Securities Administrator as permitted by clause (ii) of the
definition of Permitted Investments or as otherwise directed in writing by
a
majority of the Certificateholders. In the absence of written instructions,
such
funds held in the Swap Termination Receipts Account and the Swap Replacement
Receipts Account shall remain uninvested.
Unless
otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Swap Agreement(s)
and
the Securities Administrator shall promptly, with the assistance and cooperation
of the Depositor, use amounts on deposit in the Swap Termination Receipts
Account, if necessary, to enter into replacement Swap Agreement(s) which
shall
be executed and delivered by the Securities Administrator on behalf of the
Supplemental Interest Trust upon receipt of written confirmation from each
Rating Agency that such replacement Swap Agreement(s) 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.
Amounts
on deposit in the Swap Replacement Receipts Account shall be held for the
benefit of the related Swap Provider and paid to such Swap Provider if the
Supplemental Interest Trust is required to make a payment to such Swap Provider
following an event of default or termination event with respect to the
Supplemental Interest Trust under the related Swap Agreement. Any amounts
not so
applied shall, following the termination or expiration of such Swap Agreement,
be paid to the Class C Certificates.
SECTION
5.13. Basis
Risk Cap Agreement.
(a) The
Securities Administrator, on behalf of the Trust Fund, shall establish an
account for the Basis Risk Cap Agreement (the “Basis Risk Cap Account”). The
Basis Risk Cap 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 monies, including, without limitation, other monies of the Securities
Administrator held by the Securities Administrator pursuant to this
Agreement.
124
(b) The
Securities Administrator shall deposit into the Basis Risk Cap Account any
amounts received from the Basis Risk Cap Provider under the Basis Risk Cap
Agreement.
(c) Funds
in
the Basis Risk Cap Account shall be invested in Permitted Investments. Any
earnings on such amounts shall be distributed on each Distribution Date pursuant
to Section 5.01(j). The Class C Certificates shall evidence ownership of
the
Basis Risk Cap Account for federal income tax purposes and the Holder thereof
shall direct the Securities Administrator, in writing, as to investment of
amounts on deposit therein. GCFP 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 Basis Risk
Cap
Account, such funds shall remain uninvested. Any amounts on deposit in the
Basis
Risk Cap Account in excess of the Basis Risk Cap Amount on any Distribution
Date
shall be held for distribution pursuant to Section 5.01(j) on the following
Distribution Date.
(d) Upon
termination of the Trust Fund, any amounts remaining in the Basis Risk Cap
Account shall be distributed pursuant to the priorities set forth in Sections
5.01(j).
SECTION
5.14. Basis
Risk Cap Termination Receipts.
(a) In
the
event of an “Early Termination Date” as defined under the Basis Risk Cap
Agreement, (i) any Basis Risk Cap Termination Payment made by the Basis Risk
Cap
Provider to the Basis Risk Cap Account (“Basis Risk Cap Termination Receipts”)
shall be deposited in a segregated non-interest bearing account which shall
be a
subaccount of the Basis Risk Reserve Fund and which shall be an Eligible
Account
established by the Securities Administrator (the “Basis Risk Cap Termination
Receipts Account”) and (ii) any amounts received from a replacement Basis Risk
Cap Provider (“Basis Risk Cap Replacement Receipts”) will be deposited in a
segregated non-interest bearing account which shall be a subaccount of the
Basis
Risk Reserve Fund and which shall be an Eligible Account established by the
Securities Administrator (the “Basis Risk Cap Replacement Receipts Account”). In
the absence of written instructions, such funds held in any Basis Risk Cap
Termination Receipts Account and any Basis Risk Cap Replacement Receipts
Account
shall remain uninvested.
(b)
Unless otherwise permitted by the Rating Agencies as evidenced in a written
confirmation, the Depositor shall arrange for replacement Basis Risk Cap
Agreement(s) and the Securities Administrator shall promptly, with the
assistance and cooperation of the Depositor, use amounts on deposit in the
related Basis Risk Cap Termination Receipts Account, if necessary, to enter
into
replacement Basis Risk Cap Agreement(s) which shall be executed and delivered
by
the Securities Administrator on behalf of the Trust Fund upon receipt of
written
confirmation from each Rating Agency that such replacement Basis Risk Cap
Agreement(s) 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.
125
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
(a) 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
Securities Administrator and authenticated and delivered by the Certificate
Registrar upon the written order of the Depositor concurrently with the sale
and
assignment to the Trustee of the Trust Fund. Each Class of the Regular
Certificates shall be initially evidenced by one or more Certificates
representing a Percentage Interest with a minimum dollar denomination of
$25,000
and integral dollar multiples of $1 in excess thereof, in the case of the
Class
A-1A, Class A-1B, Class A-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; 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 R Certificates are issuable
only in
a Percentage Interest of 100%.
(b) The
Certificates shall be executed on behalf of the Trust Fund by manual or
facsimile signature on behalf of the Securities Administrator by a Responsible
Officer. Certificates bearing the manual or facsimile signatures of individuals
who were, at the time when such signatures were affixed, authorized to sign
on
behalf of the 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.
(c) [Reserved]
(d) 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 Securities Administrator 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.
126
(e) The
Class
R 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, each of which
shall
be registered in the name of Greenwich Capital Markets, Inc., duly executed
by
the Securities Administrator 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 Securities Administrator
is hereby appointed, and the Securities Administrator hereby accepts its
appointment as, initial Certificate Registrar on behalf of the Trustee, for
the
purpose of registering Certificates and transfers and exchanges of Certificates
as herein provided.
Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust
Office of the Certificate Registrar maintained for such purpose pursuant
to the
foregoing paragraph, the Securities Administrator on behalf of the Trust
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
Securities Administrator 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
Securities Administrator or the Certificate Registrar except to another
Depository; (ii) the Depository shall maintain book-entry records with respect
to the Certificate Owners and with respect to ownership and transfers of
such
Certificates; (iii) ownership and transfers of registration of such Certificates
on the books of the Depository shall be governed by applicable rules established
by the Depository; (iv) the Depository may collect its usual and customary
fees,
charges and expenses from its Depository Participants; (v) the Certificate
Registrar, 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.
127
All
transfers by Certificate Owners of Book-Entry Certificates shall be made
in
accordance with the procedures established by the Depository Participant
or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance
with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute one or more Letter of Representations with the Depository or take
such
other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms
of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
(c) If
(x)
the Depository or the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Certificate Registrar or the
Depositor is unable to locate a qualified successor, upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Securities Administrator shall at the Seller’s expense execute on behalf of
the Trust 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.
(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, the
Master
Servicer, the Securities Administrator or the Depositor) or (ii) the Certificate
Registrar shall require the transferor to execute a transferor certificate
and
the transferee to execute an investment letter acceptable to and in form
and
substance reasonably satisfactory to the Depositor and the Certificate Registrar
certifying to the Depositor and the Certificate Registrar the facts surrounding
such transfer, which investment letter shall not be an expense of the Trust
Fund, the Trustee, the Certificate Registrar, the Master Servicer, the
Securities Administrator or the Depositor. Each Holder of a Private Certificate
desiring to effect such transfer shall, and does hereby agree to, indemnify
the
Trustee, the Certificate Registrar, the Securities Administrator, the Seller
and
the Depositor against any liability that may result if the transfer is not
so
exempt or is not made in accordance with such federal and state
laws.
128
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 Securities Administrator, 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 Securities Administrator,
the
Depositor and the Certificate Registrar against any liability that may result
if
the transfer is not so exempt or is not made in accordance with such federal
and
state laws.
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation from the transferee of such Certificate, acceptable
to and in form and substance satisfactory to the Certificate Registrar and
the
Depositor (such requirement is satisfied only by the Certificate Registrar’s
receipt of a representation letter from the transferee substantially in the
form
of Exhibit I-1 or I-2, as applicable, hereto), to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA
or a
plan or arrangement subject to Section 4975 of the Code, 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 Securities
Administrator, the Certificate Registrar, the Master 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 Securities Administrator, the Certificate Registrar,
any NIMS Insurer, the Master 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.
129
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).
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.
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 and this Agreement.
130
(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.
(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.
131
(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
Securities Administrator upon receipt of reasonable compensation will provide
to
the Internal Revenue Service, and to the persons specified in Sections
860E(e)(3) and (6) of the Code, information needed to compute the tax imposed
under Section 860E(e)(5) of the Code on transfers of residual interests to
disqualified organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Certificate
Registrar, in form and substance satisfactory to the Certificate Registrar,
(i)
written notification from each Rating Agency that the removal of the
restrictions on Transfer set forth in this Section will not cause such Rating
Agency to downgrade its ratings of the Certificates and (ii) an Opinion of
Counsel to the effect that such removal will not cause the REMIC created
hereunder to fail to qualify as a REMIC.
(f) Notwithstanding
any provision to the contrary herein, so long as a Restricted Global Security
or
Regulation S Global Security, as applicable, representing 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).
132
(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.
(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.
133
(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.
(g) 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)
(h) No
service charge shall be made for any registration of transfer or exchange
of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee or the Certificate
Registrar or the Trustee or the Certificate Registrar receives evidence to
its
satisfaction of the destruction, loss or theft of any Certificate and (ii)
there
is delivered to the Trustee, 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 Securities Administrator 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.
134
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 the Securities Administrator as the initial Paying
Agent. The duties of the Paying Agent may include the obligation (i) to withdraw
funds from the Distribution Account pursuant to Section 4.03 hereof and (ii)
to
distribute statements and provide information to Certificateholders as required
hereunder. The Paying Agent hereunder shall at all times be an entity duly
incorporated and validly existing under the laws of the United States of
America
or any state thereof, authorized under such laws to exercise corporate trust
powers and subject to supervision or examination by federal or state
authorities.
(b) The
Securities Administrator, as Paying Agent, shall hold all sums, if any, held
by
it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall comply with all requirements of the Code regarding
the withholding of payments in respect of federal income taxes due from
Certificate Owners and otherwise comply with the provisions of this Agreement
applicable to it.
135
ARTICLE
VII
DEFAULT
SECTION
7.01. Event
of Default.
(a) If
any
one of the following events (each, an “Event
of Default”)
shall
occur and be continuing:
(i) the
failure by the Master Servicer to (A) make any Advance on the Business Day
immediately preceding the related Distribution Date or (B) to deposit in
the
Distribution Account any deposit required to be made under the terms of this
Agreement, and in either case such failure continues unremedied for a period
of
one Business Day after the date upon which written notice of such failure,
requiring the same to be remedied, shall have been given to the Master Servicer
(or, if applicable, such shorter time period as is provided in the penultimate
sentence of Section 7.01(c)); or
(ii) the
failure by the Master Servicer duly to observe or perform, in any material
respect, any other covenants, obligations or agreements of the Master Servicer
as set forth in this Agreement, which failure continues unremedied for a
period
of 60 days, in each case after the date (A) on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Master
Servicer by the Trustee or to the Master Servicer and the Trustee by Holders
of
Certificates evidencing at least 25% of the Voting Rights or (B) on which
a
Servicing Officer of the Master Servicer has actual knowledge of such failure
(or, in the case of a breach of its obligation beyond any applicable cure
period
to provide an assessment of compliance, an attestation report or a
Xxxxxxxx-Xxxxx Certification pursuant to Sections 3.16 and 3.19, respectively);
or
(iii) the
entry
against the Master Servicer of a decree or order by a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of
a trustee, conservator, receiver or liquidator in any insolvency,
conservatorship, receivership, readjustment of debt, marshalling of assets
and
liabilities or similar proceedings, or for the winding up or liquidation
of its
affairs, and the continuance of any such decree or order unstayed and in
effect
for a period of 60 days; or
(iv) the
Master Servicer shall voluntarily go into liquidation, consent to the
appointment of a conservator or receiver or liquidator or similar person
in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings of or relating to the Master Servicer or of or relating
to
all or substantially all of its property; or a decree or order of a court
or
agency or supervisory authority having jurisdiction in the premises for the
appointment of a conservator, receiver, liquidator or similar person in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up or liquidation of its affairs,
shall
have been entered against the Master Servicer and such decree or order shall
have remained in force undischarged, unbonded or unstayed for a period of
60
days; or the Master Servicer shall admit in writing its inability to pay
its
debts generally as they become due, file a petition to take advantage of
any
applicable insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations;
136
(b) then,
and
in each and every such case, so long as an Event of Default shall not have
been
remedied within the applicable grace period, the Trustee shall, at the written
direction of the Holders of Certificates evidencing Voting Rights aggregating
not less than 51%, or at its option may, by notice then given in writing
to the
Master Servicer, terminate all of the rights and obligations of the Master
Servicer as servicer under this Agreement. Any such notice to the Master
Servicer shall also be given to each Rating Agency, any NIMS Insurer, the
Depositor, the Credit Risk Manager and the Seller. On or after the receipt
by
the Master Servicer (and by the Trustee if such notice is given by the Holders)
of such written notice, all authority and power of the Master Servicer under
this Agreement, whether with respect to the Certificates or the Mortgage
Loans
or otherwise, shall pass to and be vested in the Trustee and the Trustee
is
hereby authorized and empowered to execute and deliver, on behalf of the
Master
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to
complete the transfer and endorsement of each Mortgage Loan and related
documents or otherwise. The Master Servicer agrees to cooperate with the
Trustee
in effecting the termination of the responsibilities and rights of the Master
Servicer hereunder, including, without limitation, the delivery to the Trustee
of all documents and records requested by it to enable it to assume the Master
Servicer's functions under this Agreement within ten Business Days subsequent
to
such notice and the transfer within one Business Day subsequent to such notice
to the Trustee for the administration by it of all cash amounts that shall
at
the time be held by the Master Servicer and to be deposited by it in the
Distribution Account, any REO Account or any Servicing Account or that have
been
deposited by the Master Servicer in such accounts or thereafter received
by the
Master Servicer with respect to the Mortgage Loans or any REO Property received
by the Master Servicer. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with transferring the Master Servicer's duties
and
the Mortgage Files to the successor Master Servicer and amending this Agreement
to reflect such succession as Master Servicer pursuant to this Section shall
be
paid by the predecessor Master Servicer (or if the predecessor Master Servicer
is the Trustee, the terminated Master Servicer) upon presentation of reasonable
documentation of such costs and expenses. The termination of the rights and
obligations of the Master Servicer shall not affect any liability it may
have
incurred prior to such termination. To the extent that such costs and expenses
of the Trustee are not fully and timely reimbursed by the predecessor Master
Servicer, the Trustee shall be entitled to reimbursement of such costs and
expenses from the Distribution Account.
(c) The
Securities Administrator shall not later than the close of business on the
Business Day immediately preceding the related Distribution Date notify the
Trustee in writing of the Master Servicer’s failure to make any Advance required
to be made under this Agreement on such date and the amount of such Advance.
By
no later than 10:00 A.M. (Chicago time) on the relevant Distribution Date,
the
Securities Administrator shall notify the Trustee of the continuance of such
failure or that the Master Servicer has made the Advance, as the case may
be.
Notwithstanding the terms of the Event of Default described in clause (i)
of
Section 7.01(a), the Trustee, upon receipt of written notice on the Distribution
Date from the Securities Administrator of the continuance of the failure
of the
Master Servicer to make an Advance or deposit funds to the Distribution Account,
shall, by notice in writing to the Master Servicer, which may be delivered
by
telecopy, immediately suspend all of the rights and obligations of the Master
Servicer thereafter arising under this Agreement, but without prejudice to
any
rights it may have as a Certificateholder or to reimbursement of outstanding
Advances or other amounts for which the Master Servicer was entitled to
reimbursement as of the date of suspension, and the Trustee, subject to the
cure
provided for in this paragraph, if available, shall act as provided in Section
7.02 to carry out the duties of the Master Servicer, including the obligation
to
make any Advance the nonpayment of which is described in clause (i)(A) of
Section 7.01(a). Any such action taken by the Trustee must be prior to the
distribution on the relevant Distribution Date, and shall have all of the
rights
incidental thereto. If the Master Servicer shall within two Business Days
following such suspension remit to the Trustee the amount of any Advance
the
nonpayment of which by the Master Servicer is described in clause (i)(A)
of
Section 7.01(a), together with all other amounts necessary to reimburse the
Trustee for actual, necessary and reasonable costs incurred by the Trustee
because of action taken pursuant to this subsection (including interest on
any
Advance or other amounts paid by the Trustee (from and including the respective
dates thereof) at a per annum rate equal to the prime rate for U.S. money
center
commercial banks as published in the Wall Street Journal), then the Trustee,
subject to the last two sentences of this paragraph, may at its sole discretion
permit the Master Servicer to resume its rights and obligations as Master
Servicer hereunder. If the Master Servicer shall fail to remit such amounts
to
the Trustee within such two Business Days after the Distribution Date, then
an
Event of Default shall occur and such notice of suspension shall be deemed
to be
a notice of termination without any further action on the part of the Trustee.
The Master Servicer agrees that if it fails to make a required Advance by
10:00
A.M. (Chicago time) on the related Distribution Date on more than two occasions
in any 12 month period, the Trustee shall be under no obligation to permit
the
Master Servicer to resume its rights and obligations as Master Servicer
hereunder, and notwithstanding the cure period provided in Section
7.01(a)(i)(A), an Event of Default shall be deemed to have occurred on the
relevant Distribution Date.
137
SECTION
7.02. Trustee
to Act.
(a) From
and
after the date the Master Servicer (and the Trustee, if notice is sent by
the
Holders) receives a notice of termination pursuant to Section 7.01, the Trustee
shall be the successor in all respects to the Master Servicer in its capacity
as
servicer under this Agreement and the transactions set forth or provided
for
herein and shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Master Servicer by the terms and provisions
hereof arising on and after its succession, including the obligation to make
Advances. As compensation therefor, the Trustee shall be entitled to such
compensation as the Master Servicer would have been entitled to hereunder
if no
such notice of termination had been given. Notwithstanding the above, (i)
if the
Trustee is unwilling to act as successor Master Servicer or (ii) if the Trustee
is legally unable so to act, the Trustee shall appoint or petition a court
of
competent jurisdiction to appoint, any established housing and home finance
institution, bank or other mortgage loan or home equity loan servicer having
a
net worth of not less than $15,000,000 as the successor to the Master Servicer
hereunder in the assumption of all or any part of the responsibilities, duties
or liabilities of the Master Servicer hereunder; provided
that the
appointment of any such successor Master Servicer shall not result in the
qualification, reduction or withdrawal of the ratings assigned to the
Certificates by each Rating Agency as evidenced by a letter to such effect
from
each Rating Agency. Pending appointment of a successor to the Master Servicer
hereunder, unless the Trustee is prohibited by law from so acting, the Trustee
shall act in such capacity as hereinabove provided. In connection with such
appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Master Servicer would otherwise have received hereunder.
The appointment of a successor Master Servicer shall not affect any liability
of
the predecessor Master Servicer which may have arisen under this Agreement
prior
to its termination as Master Servicer to pay any deductible under an insurance
policy pursuant to Section 3.09 or to indemnify the Trustee pursuant to Section
3.30), nor shall any successor Master Servicer be liable for any acts or
omissions of the predecessor Master Servicer (except with respect to the
making
of Advances the defaulting Master Servicer was required to make but did not
make) or for any breach by such Master Servicer of any of its representations
or
warranties contained herein or in any related document or agreement. The
Trustee
and such successor shall take such action, consistent with this Agreement,
as
shall be necessary to effectuate any such succession.
138
(b) Any
successor, including the Trustee, to the Master Servicer as Master Servicer
shall during the term of its service as Master Servicer continue to service
and
administer the Mortgage Loans for the benefit of Certificateholders, and
maintain in force a policy or policies of insurance covering errors and
omissions in the performance of its obligations as Master Servicer hereunder
and
a Fidelity Bond in respect of its officers, employees and agents to the same
extent as the Master Servicer is so required pursuant to Section 3.04.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Master Servicer
to act as successor Master Servicer under this Agreement and the transactions
set forth or provided for herein.
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 Master Servicer under this Agreement, provided,
however,
that
the Majority Certificateholders may not waive an event that results in a
failure
to make any required distribution on a Certificate without the consent of
the
Holder of such Certificate. Upon any waiver of an Event of Default, such
event
shall cease to exist and any Event of Default arising therefrom shall be
deemed
to have been remedied for every purpose of this Agreement. No such waiver
shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall
be
given by the Trustee to each Rating Agency.
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Master Servicer pursuant
to
this Article VII or Section 3.31, the Trustee shall give prompt written notice
thereof to the Securities Administrator and the Certificateholders at their
respective addresses appearing in the Certificate Register, to each Rating
Agency, to any NIMS Insurer.
139
(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 and any
NIMS
Insurer notice of such occurrence unless such Event of Default shall have
been
waived or cured.
ARTICLE
VIII
THE
TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION
8.01. Duties
of the Trustee and the Securities Administrator.
The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, and the Securities
Administrator each undertake to perform such duties and only such duties
as are
specifically set forth in this Agreement. If an Event of Default has occurred
(which has not been cured or waived) of which a Responsible Officer has actual
knowledge, the Trustee shall exercise such of the rights and powers vested
in it
by this Agreement, and use the same degree of care and skill in their exercise,
as a prudent man would exercise or use under the circumstances in the conduct
of
his own affairs, unless the Trustee is acting as successor Master Servicer,
in
which case it shall use the same degree of care and skill as the Master Servicer
hereunder with respect to the exercise of the rights and powers of the Master
Servicer hereunder.
The
Trustee and the Securities Administrator, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee and the Securities Administrator, which
are
specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
neither the Trustee nor the Securities Administrator will be responsible
for the
accuracy or content of any such resolutions, certificates, statements, opinions,
reports, documents or other instruments. If any such instrument is found
not to
conform to the requirements of this Agreement in a material manner the Trustee
and the Securities Administrator shall take such action as it deems appropriate
to have the instrument corrected. If the instrument is not corrected to the
satisfaction of the Trustee or the Securities Administrator, as applicable,
the
Trustee or the Securities Administrator, as applicable, shall provide notice
thereof to the Certificateholders and 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 (or in the case of any payments to the Swap Provider, on
the
Swap Payment Date), the Securities Administrator, as Paying Agent, shall
make
monthly distributions to the Certificateholders and the Swap Provider from
funds
in the Distribution Account, the Basis Risk Reserve Fund, the Swap Account
and
the Basis Risk Cap Account, as applicable, in each case as provided in Sections
5.01, 5.07, 5.09 and 10.01 hereof based on the report of the Securities
Administrator.
140
No
provision of this Agreement shall be construed to relieve the Trustee or
the
Securities Administrator from liability for its own negligent action, its
own
negligent failure to act or its own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
and the Securities Administrator shall be determined solely by the express
provisions of this Agreement, neither the Trustee nor the Securities
Administrator shall be liable except for the performance of such of its duties
and obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
or the Securities Administrator and, in the absence of bad faith on the part
of
the Trustee or the Securities Administrator, respectively, the Trustee or
the
Securities Administrator may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee or the Securities
Administrator, respectively, and conforming to the requirements of this
Agreement;
(ii) neither
the Trustee nor the Securities Administrator shall be liable for an error
of
judgment made in good faith by a Responsible Officer of the Trustee or an
officer of the Securities Administrator, respectively, unless it shall be
proved
that the Trustee or the Securities Administrator, respectively, was negligent
in
ascertaining or investigating the facts related thereto;
(iii) neither
the Trustee nor the Securities Administrator shall be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith
in accordance with the consent or at the direction of 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 or the
Securities Administrator, respectively, under this Agreement; and
(iv) the
Trustee shall not be charged with knowledge of any Event of Default or a
Document Transfer Event or any other event or matter that may require it
to take
action or omit to take action hereunder unless a Responsible Officer of the
Trustee at the Corporate Trust Office receives written notice of such Event
of
Default or Document Transfer Event.
Neither
the Trustee nor the Securities Administrator shall be required to expend
or risk
its own funds or otherwise incur financial or other liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of
such
funds or indemnity satisfactory to it against such risk or liability is not
assured to it, and none of the provisions contained in this Agreement shall
in
any event require the Trustee or the Securities Administrator to perform,
or be
responsible for the manner of performance of, any of the obligations of the
Master Servicer under this Agreement, except during such time, if any, as
the
Trustee shall be the successor to, and be vested with the rights, duties,
powers
and privileges of, the Master Servicer in accordance with the terms of this
Agreement.
141
SECTION
8.02. Certain
Matters Affecting the Trustee and the Securities Administrator.
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee and the Securities Administrator may request and conclusively rely
upon,
and shall be fully protected in acting or refraining from acting upon, any
resolution, Officers’ Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document reasonably believed by
it to
be genuine and to have been signed or presented by the proper party or parties,
and the manner of obtaining consents and of evidencing the authorization
of the
execution thereof by Certificateholders shall be subject to such reasonable
regulations as the Trustee and the Securities Administrator may
prescribe;
(ii) the
Trustee and the Securities Administrator may consult with counsel and any
advice
of its counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice
or
Opinion of Counsel;
(iii) neither
the Trustee nor the Securities Administrator shall be under any obligation
to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation hereunder or in relation hereto,
at
the request, order or direction of any of the Certificateholders or any NIMS
Insurer pursuant to the provisions of this Agreement, unless such
Certificateholders or any NIMS Insurer shall have offered to the Trustee
or the
Securities Administrator, respectively, reasonable security or indemnity
satisfactory to it against the costs, expenses and liabilities which may
be
incurred therein or thereby; the right of the Trustee to perform any
discretionary act enumerated in this Agreement shall not be construed as
a duty,
and the Trustee shall not be answerable for other than its negligence or
willful
misconduct in the performance of any such act;
(iv) neither
the Trustee nor the Securities Administrator shall be personally liable for
any
action taken, suffered or omitted by it in good faith and believed by it
to be
authorized or within the discretion or rights or powers conferred upon it
by
this Agreement;
(v) neither
the Securities Administrator nor, prior to the occurrence of an Event of
Default
and after the curing or waiver of all Events of Default which may have occurred,
the Trustee shall be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or documents,
unless requested in writing to do so by any NIMS Insurer, or the Majority
Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee or the Securities
Administrator of the costs, expenses or liabilities likely to be incurred
by it
in the making of such investigation is, in the opinion of the Trustee or
the
Securities Administrator, as applicable, not reasonably assured to the Trustee
or the Securities Administrator by the security afforded to it by the terms
of
this Agreement, the Trustee or the Securities Administrator, as applicable,
may
require reasonable indemnity against such cost, expense, liability or payment
of
such estimated expenses from any NIMS Insurer or the Certificateholders,
as
applicable, as a condition to such proceeding. If the Master Servicer fails
to
reimburse the Trustee or the Securities Administrator in respect of the
reasonable expense of every such examination relating to the Master Servicer,
the Trustee or the Securities Administrator shall be reimbursed by the Trust
Fund;
142
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Securities
Administrator or the Master Servicer until such time as the Trustee may be
required to act as the Master Servicer pursuant to Section 7.02 hereof and
thereupon only for the acts or omissions of the Trustee as a successor Master
Servicer;
(vii) the
Trustee and the Securities Administrator may execute any of the trusts or
powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, attorneys or the Custodian, and shall not be responsible
for
any willful misconduct or negligence on the part of any agent, nominee, attorney
or custodian appointed by the Trustee or the Securities Administrator in
good
faith;
(viii) the
right
of the Trustee or the Securities Administrator to perform any discretionary
act
enumerated in this Agreement shall not be construed as a duty, and neither
the
Trustee nor the Securities Administrator shall be answerable for other than
its
negligence or willful misconduct in the performance of such act;
and
(ix) in
order
to comply with laws, rules, regulations and executive orders in effect from
time
to time applicable to the banking institutions, including those relating
to the
funding of terrorist activities and money laundering (“Applicable Law”), the
Trustee and the Securities Administrator are required to obtain, verify and
record certain information relating to certain individuals and certain entities
which maintain a business relationship with the Trustee and the Securities
Administrator. Accordingly, each of the parties agrees to provide the Trustee
and the Securities Administrator upon its request from time to time such
identifying information and documentation as may be available for such party
in
order to enable the Trustee and the Securities Administrator to comply with
Applicable Law.
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 Agreements and the Servicing Agreement, as well as 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
and the Securities Administrator Not Liable for Certificates or Mortgage
Loans.
The
recitals contained herein and in the Certificates (other than the authentication
of the Securities Administrator on the Certificates) shall be taken as the
statements of the Depositor or the Seller, and neither the Trustee nor the
Securities Administrator assumes responsibility for the correctness of the
same.
Neither the Trustee nor the Securities Administrator makes representations
or
warranties as to the validity or sufficiency of this Agreement or of the
Certificates (other than with respect to the Securities Administrator the
signature and authentication of the Securities Administrator on the
Certificates) or of any Mortgage Loan or related document or of MERS or the
MERS
System. The Trustee shall not be accountable for the use or application by
the
Master Servicer or the Securities Administrator, or for the use or application
of any funds paid to the Master Servicer in respect of related Mortgage Loans
or
deposited in or withdrawn from the Distribution Account by the Master Servicer
or the Securities Administrator. Neither the Trustee nor the Securities
Administrator shall at any time have any responsibility or liability for
or with
respect to the legality, validity and enforceability of any Mortgage or any
Mortgage Loan, or the perfection and priority of any Mortgage or the maintenance
of any such perfection and priority, or for or with respect to the sufficiency
of the Trust Fund or its ability to generate the payments to be distributed
to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence
and
enforceability of any hazard insurance thereon (other than if the Trustee
shall
assume the duties of the Master Servicer pursuant to Section 7.02 hereof);
the
validity of the assignment of any Mortgage Loan to the Trustee or of any
intervening assignment; the completeness of any Mortgage Loan; the performance
or enforcement of any Mortgage Loan (other than if the Trustee shall assume
the
duties of the Master Servicer pursuant to Section 7.02 hereof); the compliance
by the Depositor or the Seller with any warranty or representation made under
this Agreement or in any related document or the accuracy of any such warranty
or representation prior to the Trustee’s receipt of notice or other discovery of
any non-compliance therewith or any breach thereof; any investment of monies
by
or at the direction of the Master Servicer or any loss resulting therefrom,
it
being understood that the Trustee shall remain responsible for any Trust
Fund
property that it may hold in its individual capacity and the Securities
Administrator shall remain responsible for any Trust Fund property that it
may
hold in its individual capacity; the acts or omissions of the Master Servicer
(other than as to the Securities Administrator, if it is also the Master
Servicer, and as to the Trustee, if the Trustee shall assume the duties of
the
Master Servicer pursuant to Section 7.02 hereof, and then only for the acts
or
omissions of the Trustee as the successor Master Servicer), or any acts or
omissions of, the Servicer or any Mortgagor; any action of the Master Servicer
(other than as to the Securities Administrator, if it is the Master Servicer,
and as to the Trustee, if the Trustee shall assume the duties of the Master
Servicer pursuant to Section 7.02 hereof), or in the case of the Trustee
the
Securities Administrator or the Servicer taken in the name of the Trustee;
the
failure of the Master Servicer or the Servicer to act or perform any duties
required of it as agent or on behalf of the Trustee or the Trust Fund hereunder;
or any action by the Trustee taken at the instruction of the Master Servicer
(other than if the Trustee shall assume the duties of the Master Servicer
pursuant to Section 7.02 hereof, and then only for the actions of the Trustee
as
the successor Master Servicer); provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform
its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files, if so required pursuant to Section 2.01 of
this
Agreement.
143
SECTION
8.04. Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
The
Trustee, the Custodian, the Master Servicer and the Securities Administrator
in
their respective individual capacities, or in any capacity other than as
Trustee, Custodian, Master Servicer or Securities Administrator hereunder,
may
become the owner or pledgee of any Certificates with the same rights they
would
have if they were not Trustee, the Custodian, Master Servicer or Securities
Administrator, as applicable, and may otherwise deal with the parties
hereto.
144
SECTION
8.05. Trustee’s
and Securities Administrator’s Fees and Expenses.
The
Trustee (including in its capacity as the Custodian) shall be compensated
by the
Master Servicer for its services hereunder on behalf of the Trust Fund in
the
amount agreed upon by the Master Servicer and the Trustee. The Trustee Fee
shall
paid from a portion of the Master Servicing Fee. The Securities Administrator
shall be compensated by the Master Servicer for its services hereunder from
a
portion of the Master Servicing Fee. In addition, the Trustee and the Securities
Administrator will be entitled to recover from the Distribution Account pursuant
to Section 4.03(a) all reasonable out-of-pocket expenses, disbursements and
advances and the expenses of the Trustee (including for such purpose, any
fees
and expenses relating to its capacity as the Custodian hereunder) and the
Securities Administrator, respectively, including without limitation, in
connection with any filing that the Securities Administrator is required
to make
under Section 3.20 hereof, any Event of Default, any breach of this Agreement
or
any claim or legal action (including any pending or threatened claim or legal
action) incurred or made by the Trustee or the Securities Administrator,
respectively, in the performance of its duties or the administration of the
trusts hereunder (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 Securities
Administrator under each of the Swap Agreement, the Supplemental Interest
Trust
or the Basis Risk Cap 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 Master Servicer, the Certificateholders or the Trust Fund hereunder
or thereunder. If funds in the Distribution Account are insufficient therefor,
the Trustee, the Custodian and the Securities Administrator shall recover
such
expenses from future collections on the Mortgage Loans or as otherwise agreed
by
the Certificateholders. Such compensation and reimbursement obligation shall
not
be limited by any provision of law in regard to the compensation of a trustee
of
an express trust.
SECTION
8.06. Eligibility
Requirements for Trustee and Securities Administrator.
The
Trustee and Securities Administrator 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, each having a combined capital and surplus of at least $50,000,000
and
(except with respect to the initial Trustee) a minimum long-term debt rating
in
the third highest rating category by each Rating Agency and in each Rating
Agency’s two highest short-term rating categories, and subject to supervision or
examination by federal or state authority and (iii) not be an Affiliate of
the
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 or the Securities Administrator shall cease to be eligible in accordance
with the provisions of this Section 8.06, the Trustee or the Securities
Administrator, as applicable shall resign immediately in the manner and with
the
effect specified in Section 8.07 hereof.
145
SECTION
8.07. Resignation
or Removal of Trustee and Securities Administrator.
The
Trustee and Securities Administrator (including the Securities Administrator
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, the Master Servicer and each Rating Agency.
Upon
receiving such notice of resignation of the Trustee, the Depositor shall
promptly appoint a successor Trustee that meets the requirements in Section
8.06
and is reasonably acceptable to any NIMS Insurer or, in the case of notice
of
resignation of the Securities Administrator, the Trustee (in consultation
with
the Depositor) shall promptly appoint a successor Securities Administrator
that
meets the requirements in Section 8.06 and is reasonably acceptable to any
NIMS
Insurer, by written instrument, with a copy of such written instrument delivered
to (i) each of the resigning Trustee or Securities Administrator, as applicable,
(ii) the successor Trustee or successor Securities Administrator, as applicable,
and (iii) any NIMS Insurer. If no successor Trustee or successor Securities
Administrator, as applicable, shall have been so appointed and having accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Trustee or Securities Administrator may petition any court of
competent jurisdiction for the appointment of a successor Trustee or Securities
Administrator, as applicable.
If
at any
time the Trustee or the Securities Administrator (a) shall cease to be eligible
in accordance with the provisions of Section 8.06 hereof and shall fail to
resign after written request therefor by the Depositor or any NIMS Insurer
or if
at any time the Trustee or the Securities Administrator, (b) shall be legally
unable to act, or shall be adjudged a bankrupt or insolvent, or a receiver
of
the Trustee or the Securities Administrator, as applicable, or of its property
shall be appointed, or any public officer shall take charge or control of
the
Trustee or the Securities Administrator, as applicable, or of its property
or
affairs for the purpose of rehabilitation, conservation or liquidation, or
(iii)
if the Trustee (in its capacity as Custodian) or the Securities Administrator
fails to provide an assessment of compliance or an attestation report required
under Section 3.16 within 15 calendar days of March 1 of each calendar year
in
which Exchange Act reports are required or (d) shall fail to file any Form
10-D
or Form 10-K when due pursuant to Section 3.20 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 3.20 or any other party
to
deliver information in a timely manner as set forth in Section 3.20) then
the
Depositor or any NIMS Insurer may remove the Trustee or the Trustee may remove
the Securities Administrator, as applicable. If the Depositor or the Trustee
removes the Trustee or the Securities Administrator, respectively under the
authority of the immediately preceding sentence, the Depositor or the Trustee
shall promptly appoint a successor Trustee or successor Securities
Administrator, in each case, reasonably acceptable to the NIMS Insurer, and
that
meets the requirements of Section 8.06, as applicable, by written instrument,
with a copy of such written instrument delivered to (i) the Trustee or the
Securities Administrator, as applicable, so removed, (ii) the successor Trustee
or successor Securities Administrator, as applicable, (iii) the Master Servicer
and (iv) any NIMS Insurer.
146
The
Majority Certificateholders (or any NIMS Insurer in the event of failure
of the
Trustee or Securities Administrator, as applicable, to perform its obligations
hereunder) may at any time remove the Trustee or the Securities Administrator
by
written instrument or instruments delivered to the Depositor and the Trustee;
the Depositor or the Trustee shall thereupon use its best efforts to appoint
a
successor Trustee or successor Securities Administrator, as applicable, in
each
case, acceptable to the NIMS Insurer, in accordance with this
Section.
Any
resignation or removal of the Trustee or the Securities Administrator and
appointment of a successor Trustee or a successor Securities Administrator,
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee or a
successor Securities Administrator, as applicable, as provided in Section
8.08
hereof. If the Trustee or the Securities Administrator is removed pursuant
to
this Section 8.07, it shall be reimbursed any outstanding and unpaid fees
and
expenses, and if removed under the authority of the immediately preceding
paragraph, the Trustee or the Securities Administrator shall also be reimbursed
any outstanding and unpaid costs and expenses.
Notwithstanding
anything to the contrary contained herein, in the event that the Master Servicer
resigns or is removed as Master Servicer hereunder, the Securities Administrator
shall have the right to resign immediately as Securities Administrator by
giving
written notice to the Depositor and the Trustee, with a copy to each Rating
Agency.
SECTION
8.08. Successor
Trustee and Successor Securities Administrator.
Any
successor Trustee or successor Securities Administrator appointed as provided
in
Section 8.07 hereof shall execute, acknowledge and deliver to the Depositor,
any
NIMS Insurer, the Seller and the Master Servicer and to its predecessor Trustee
or predecessor Securities Administrator, as applicable, an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall become effective, and such successor Trustee or successor Securities
Administrator, without any further act, deed or conveyance, shall become
fully
vested with all the rights, powers, duties and obligations of its predecessor
hereunder, with like effect as if originally named as Trustee or Securities
Administrator. The Depositor, the Seller, the Master Servicer and the
predecessor Trustee or predecessor Securities Administrator, as applicable,
shall execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the
successor Trustee or successor Securities Administrator, as applicable, all
such
rights, powers, duties and obligations.
No
successor Trustee or successor Securities Administrator shall accept appointment
as provided in this Section 8.08 unless at the time of such acceptance such
successor Trustee or successor Securities Administrator shall be eligible
under
the provisions of Section 8.06 hereof and the appointment of such successor
Trustee or successor Securities Administrator shall not result in a downgrading
of the Senior Certificates by each Rating Agency, as evidenced by a letter
from
each Rating Agency.
Upon
acceptance of appointment by a successor Trustee or successor Securities
Administrator, as applicable, as provided in this Section 8.08, the successor
Trustee or successor Securities Administrator shall mail notice of such
appointment of a successor Trustee or Securities Administrator hereunder
to all
Holders of Certificates at their addresses as shown in the Certificate Register,
to any NIMS Insurer and to each Rating Agency.
147
SECTION
8.09. Merger
or Consolidation of Trustee or Securities Administrator.
Any
entity into which the Trustee or the Securities Administrator may be merged
or
converted or with which it may be consolidated, or any entity resulting from
any
merger, conversion or consolidation to which the Trustee or the Securities
Administrator shall be a party, or any entity succeeding to the corporate
trust
business of the Trustee or the Securities Administrator, shall be the successor
of the Trustee or the Securities Administrator, as applicable, hereunder,
provided
such
entity shall be eligible under the provisions of Section 8.06 and 8.08 hereof,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust
Fund
or any Mortgaged Property may at the time be located, the Depositor and the
Trustee acting jointly shall have the power, and the Trustee shall, and shall
instruct the Depositor to, 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 Master Servicer and the Trustee may
consider necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor Trustee
under
Section 8.06 hereof, and no notice to Certificateholders of the appointment
of
any co-trustee or separate trustee shall be required under Section 8.08
hereof.
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of
any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Master Servicer hereunder), the
Trustee
shall be incompetent or unqualified to perform such act or acts, in which
event
such rights, powers, duties and obligations (including the holding of title
to
the Trust Fund or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
148
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to
have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately,
as may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct
of, affecting the liability of, or affording protection to, the Trustee.
Every
such instrument shall be filed with the Trustee and a copy thereof given
to the
Depositor 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 Securities Administrator, not in its individual
capacity but solely as Securities Administrator on behalf of the Trust Fund,
in
the exercise of the powers and authority conferred and vested in it by this
Agreement. Each of the undertakings and agreements made on the part of the
Securities Administrator in the Certificates is made and intended not as
a
personal undertaking or agreement by the Trustee but is made and intended
for
the purpose of binding only the Trust Fund.
SECTION
8.12. Trustee
May Enforce Claims Without Possession of Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may
be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee (for the avoidance of doubt, in
its
individual capacity and as Trustee on behalf of the Trust Fund), its agents
and
counsel, be for the ratable benefit or the Certificateholders in respect
of
which such judgment has been recovered.
(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.
149
(c) The
Securities Administrator shall afford the Seller, the Depositor, the Trustee
and
each Certificateholder upon reasonable notice during normal business hours
at
its offices at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 or other
office
designated by the Securities Administrator, access to all records maintained
by
the Securities Administrator in respect of its duties hereunder and access
to
officers of the Securities Administrator responsible for performing such
duties.
The Securities Administrator shall cooperate fully with the Seller, the
Depositor, the Trustee and such Certificateholder and shall, subject to the
first sentence of this Section 8.12(c), make available to the Seller, the
Depositor and such Certificateholder for review and copying such books,
documents or records as may be reasonably requested with respect to the
Securities Administrator’s duties hereunder. The Seller, the Depositor, the
Trustee and the Certificateholders shall not have any responsibility or
liability for any action or failure to act by the Securities Administrator
and
are not obligated to supervise the performance of the Securities Administrator
under this Agreement or otherwise.
SECTION
8.13. Suits
for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur and
be
continuing, the Trustee may proceed to protect and enforce its rights and
the
rights of the Certificateholders under this Agreement, as the case may be,
by a
suit, action or proceeding in equity or at law or otherwise, whether for
the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee and the
Certificateholders.
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.
150
SECTION
8.16. Appointment
of Custodian.
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. The Custodian shall be a depository
institution or trust company subject to supervision by federal or state
authority, shall have combined capital and surplus of at least $15,000,000
and
shall be qualified to do business in the jurisdiction in which it holds any
Mortgage File. The Seller shall pay from its own funds, without any right
to
reimbursement, the fees, costs and expenses of each custodian (including
the
costs of custodian’s counsel).
SECTION
8.17. Limitation
of Liability of Trustee and Securities 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 Swap Agreement
or
the Basis Risk Cap Agreement. The Securities Administrator shall not have
any
liability for any failure or delay in payments to the Swap Account which
are
required under the Swap Agreement where such failure or delay is due to the
failure or delay of the Swap Provider in making such payment to the Securities
Administrator pursuant to the Swap Agreement. The Trustee and the Securities
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 Securities Administrator of their respective duties or obligations under
the
Swap Agreement or the Basis Risk Cap Agreement, as applicable, except to
the
extent that the same is due to the Trustee’s or Securities Administrator’s, as
applicable, negligence, willful misconduct or fraud.
SECTION
8.18. Closing
Opinion of Counsel.
On
or
before the Closing Date, the Securities Administrator 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
Securities Administrator and the enforceability thereof.
151
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, three REMIC elections
shall be made by the Trust Fund. The Trustee shall sign and the Securities
Administrator shall file such elections on Form 1066 or other appropriate
federal tax or information return for the taxable year ending on the last
day of
the calendar year in which the Certificates are issued. The regular interests
in
each REMIC created hereunder and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the
Securities Administrator shall apply to the Internal Revenue Service for
an
employer identification number for each REMIC created hereunder by means
of a
Form SS-4 or other acceptable method and shall file a Form 8811 with the
Internal Revenue Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for each interest in any REMIC created hereby shall
be
the Latest Possible Maturity Date.
(c) Except
as
provided in subsection (d) of this Section 9.01, the Securities Administrator
shall pay any and all tax related expenses (not including taxes) of each
REMIC
created hereunder, including but not limited to any professional fees or
expenses related to audits or any administrative or judicial proceedings
with
respect to any such REMIC that involve the Internal Revenue Service or state
tax
authorities, but only to the extent that (i) such expenses are ordinary or
routine expenses, including expenses of a routine audit but not expenses
of
litigation (except as described in (ii)); or (ii) such expenses or liabilities
(including taxes and penalties) are attributable to the negligence or willful
misconduct of the Securities Administrator in fulfilling its duties hereunder
(including the Securities Administrator’s duties as tax return
preparer).
(d) The
Securities Administrator shall prepare and file, and the Trustee shall sign
all
of the federal and state tax and information returns of each REMIC created
hereunder (collectively, the “Tax
Returns”)
as the
direct representative. The expenses of preparing and filing such Tax Returns
shall be borne by the Securities Administrator. Notwithstanding the foregoing,
the Securities Administrator shall have no obligation to prepare, file or
otherwise deal with partnership tax information or returns. In the event
that
partnership tax information or returns are required by the Internal Revenue
Service, the Seller, at its own cost and expense, will prepare and file all
necessary returns. The Internal Revenue Service has issued OID regulations
under
Sections 1271 to 1275 of the Code generally addressing the treatment of debt
instruments issued with original issue discount. Under those regulations,
debt
issued to one Person generally is aggregated in determining if there is OID.
Because certain Classes of Regular Certificates are expected to be issued
to one
Person (which intends to continue to hold the Regular Certificates indefinitely
and, in any case, for at least 30 days), the Securities Administrator, on
behalf
of the Trust Fund and upon receipt of written direction from the Depositor,
will
determine the existence and amount of any OID as if those Classes of Regular
Certificates were one debt instrument and based solely on information provided
by the Depositor to the Securities Administrator.
152
(e) The
Securities Administrator shall perform on behalf of each REMIC created hereunder
all reporting and other tax compliance duties that are the responsibility
of
each such REMIC under the Code, the REMIC Provisions or other compliance
guidance issued by the Internal Revenue Service or any state or local taxing
authority. Among its other duties, if required by the Code, the REMIC Provisions
or other such guidance, the Securities Administrator, shall provide (i) to
the
Treasury or other governmental authority such information as is necessary
for
the application of any tax relating to the transfer of 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. In
addition, the Securities Administrator shall have no information or other
tax
reporting obligations with respect to the Supplemental Interest Trust, which
shall be treated for federal income tax purposes as an entity disregarded
from
the holder of the Class C Certificates.
(f) Each
of
the Master Servicer, Trustee and the Securities Administrator (to the extent
that the affairs of the REMICs are within such Person’s control and the scope of
its specific responsibilities under the Agreement) and the Holders of
Certificates shall take any action or cause any REMIC created hereunder to
take
any action necessary to create or maintain the status of any REMIC created
hereunder as a REMIC under the REMIC Provisions and shall assist each other
as
necessary to create or maintain such status. None of the Trustee, the Securities
Administrator or the Holder of a Residual Certificate shall take any action,
cause any REMIC created hereunder to take any action or fail to take (or
fail to
cause to be taken) any action that, under the REMIC Provisions, if taken
or not
taken, as the case may be, could result in an Adverse REMIC Event unless
the
Trustee and the Securities Administrator 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 Master Servicer,
the Securities Administrator, 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 Securities Administrator 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 Securities Administrator shall
pay
any remaining REMIC taxes out of current or future amounts otherwise
distributable to the Holder of the Residual Certificate or, if no such amounts
are available, out of other amounts held in the Distribution Account, and
shall
reduce amounts otherwise payable to holders of regular interests in such
REMIC,
as the case may be.
(h) The
Securities Administrator shall, for federal income tax purposes, maintain
books
and records with respect to each REMIC created hereunder on a calendar year
and
on an accrual basis.
153
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) None
of
the Trustee, the Master Servicer or the Securities Administrator shall enter
into any arrangement by which any REMIC created hereunder will receive a
fee or
other compensation for services.
(k) The
Securities Administrator shall treat each of the Basis Risk Reserve Fund,
the
Basis Risk Cap Replacement Receipts Account, the Basis Risk Cap Termination
Receipts Account, the Swap Account, the Swap Replacement Receipts Account,
the
Swap Termination Receipts Account, and the Supplemental Interest Trust as
an
outside reserve fund within the meaning of Treasury Regulation Section
1.860G-2(h), and not as assets of any REMIC. The Holders of the Class C
Certificates are the owners of each such outside reserve fund.
(l) The
Securities Administrator shall treat the beneficial owners of the LIBOR
Certificates as having entered into a notional principal contract with the
Class
C Certificateholders. Under the notional principal contract, the beneficial
owners of the LIBOR Certificates shall be treated as having made payments
to the
Class C Certificateholders to the extent of any Class I Shortfalls allocated
to
their LIBOR Certificates. On each Distribution Date, Class I Shortfalls will
be
first allocated to each Class of LIBOR Certificates to the extent that the
interest accrued on such Class at the applicable Pass-Through Rate exceeds
the
interest accrued on such Class at the Middle-Tier WAC Cap. To the extent
the
Class I Shortfalls for any Distribution Date exceed aggregate amount of interest
accrued on the LIBOR Certificates based on their respective Pass-Through
Rates,
then remaining Class I Shortfalls will be paid from amounts otherwise
distributable as principal on the LIBOR Certificates in the absence of such
Class I Shortfall. Any payments made on the LIBOR Certificates in respect
of
Basis Risk Shortfalls shall be treated as payments made by the Class C
Certificateholders pursuant to the notional principal contract. Thus, for
federal income tax purposes, each LIBOR Certificate shall be treated as
representing both ownership of a REMIC regular interest and an interest in
a
notional principal contract. For tax information reporting purposes, it will
be
assumed that the notional principal contract portion of each Class of LIBOR
Certificates will have only nominal value unless and until an applicable
taxing
authority requires use of a different value.
(m) 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 Master Servicer shall not be treated as a portion of
the
purchase price paid for such property but shall instead be treated as an
amount
paid by the Master Servicer to the Holder of the Class C Certificates pursuant
to a cash-settled call option with respect to the property held by the Trust
Fund.
SECTION
9.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Master Servicer or the Trustee shall sell, dispose of,
or
substitute for any of the Mortgage Loans, except in a disposition pursuant
to
(i) the foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust
Fund, (iii) the termination of the REMICs created hereunder pursuant to Article
X of this Agreement, (iv) a substitution pursuant to Article II hereof or
(v) a
repurchase of Mortgage Loans as contemplated hereunder, nor acquire any assets
for any REMIC created hereunder, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to any REMIC
created
hereunder after the Closing Date, unless the Depositor, 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.
154
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee created hereby
(other than the obligation of the Securities Administrator, as Paying Agent,
to
make certain payments to Certificateholders after the Final Distribution
Date
and the obligation of the Master Servicer to send certain notices as hereinafter
set forth) shall terminate upon notice to the Trustee and the Securities
Administrator upon the earliest of (i) the Distribution Date on which the
Class Principal Balance of each Class of Certificates has been reduced to
zero,
(ii) the final payment or other liquidation of the last Mortgage Loan,
(iii) the optional purchase of the Mortgage Loans by the Terminator as
described in the following paragraph and (iv) the Latest Possible Maturity
Date. Notwithstanding the foregoing, in no event shall the trust created
hereby
continue beyond the expiration of 21 years from the death of the last survivor
of the descendants of Xxxxxx X. Xxxxxxx, the late ambassador of the United
States to the Court of St. James’s, living on the date hereof.
Following
the date on which the aggregate of the Stated Principal Balances of the Mortgage
Loans (after giving effect to scheduled payments of principal due during
the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) and
REO
Properties on such date is equal to or less than 10% of the Cut-off Date
Collateral Balance (the “Call
Option Date”),
the
Master 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 Master Servicing Fees and Servicing Fees allocable to such Mortgage
Loans
and REO Properties and all amounts, if any, then due and owing to the Trustee,
the Master Servicer and the Securities Administrator under this Agreement,
plus
any
Basis Risk Shortfalls then remaining unpaid or which is due to the exercise
of
such option, plus
(C) any
Swap Termination Payment payable to the Swap Provider as a result of a
termination pursuant to this Section 10.01 (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 Master 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 Master 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 Master 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.
155
If
the
Master Servicer does not exercise its option as described above, then the
NIMS
Insurer shall have the right to direct the Master Servicer to exercise such
option and (i) the NIMS Insurer shall remit the Termination Price in immediately
available funds to the Master Servicer at least three Business Days prior
to the
applicable Distribution Date and, upon receipt of such funds from the NIMS
Insurer, the Master 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 Master 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 Master 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
Master Servicer’s negligence, bad faith or willful misconduct.
In
connection with any such purchase pursuant to the preceding paragraph, the
Master Servicer shall deposit in the Distribution Account all amounts then
on
deposit in the Distribution Account, which deposit shall be deemed to have
occurred immediately preceding such purchase.
156
(b) Notice
of
any termination pursuant to the second paragraph of Section 10.01(a), specifying
the Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Certificate Registrar for payment of the final distribution
and cancellation, shall be given promptly by the Trustee upon the Trustee
receiving notice of such date from the Master Servicer by letter to the
Certificateholders mailed not earlier than the 10th day and not later than
the 19th day of the month immediately preceding the month of such final
distribution specifying (1) the Distribution Date upon which final
distribution of the Certificates will be made upon presentation and surrender
of
such Certificates at the office or agency of the Certificate Registrar therein
designated, (2) the amount of any such final distribution and (3) that
the Record Date otherwise applicable to such Distribution Date is not
applicable, distributions being made only upon presentation and surrender
of the
Certificates at the office or agency of the Certificate Registrar therein
specified. The Trustee shall give such notice to the Securities Administrator,
the Master Servicer, the Basis Risk Cap Provider, the Swap Provider and 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, or request the Master Servicer to 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 Securities Administrator,
as
Paying Agent, shall cause to be distributed to the Holders of the Certificates
on the Distribution Date for such final distribution, in proportion to the
Percentage Interests of their respective Class and to the extent that funds
are
available for such purpose, an amount equal to the amount required to be
distributed to such Holders in accordance with the provisions of
Section 5.01 hereof for such Distribution Date; provided,
however,
that
with respect to amounts that would otherwise be distributed to the Class
R
Certificates on the Final Distribution Date, such amounts, if any, shall
be
distributed to the Class A-1A, Class A-1B and Class A-1C Certificates,
pro
rata
up to
the amount by which the aggregate Class Principal Balance of the classes
of
Senior Certificates on such date is greater than the Pool Balance for such
Distribution Date.
(d) In
the
event that all Certificateholders shall not surrender their Certificates
for
final payment and cancellation on or before such Final Distribution Date,
the
Securities Administrator shall promptly following such date cause all funds
in
the Distribution Account not distributed in final distribution to
Certificateholders to be withdrawn therefrom and credited to the remaining
Certificateholders by depositing such funds in a separate account for the
benefit of such Certificateholders, and within six months, the 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 Master
Servicer shall be entitled to all unclaimed funds and other assets which
remain
subject hereto, and the Securities Administrator and the Trustee upon transfer
of such funds shall be discharged of any responsibility for such funds, and
the
Certificateholders shall look to the Master Servicer for payment.
157
SECTION
10.02. Additional
Termination Requirements.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
Fund shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee at the direction of the Securities Administrator shall sell any
remaining assets of the Trust Fund to Xxxxx Fargo Bank, N.A. or its designee,
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
Securities Administrator shall attach a statement to the final federal income
tax return for each REMIC created hereunder stating that pursuant to Treasury
Regulation §1.860F-1, the first day of the 90 day liquidation period for such
REMIC was the date on which the Trustee sold the assets of the Trust Fund
and
shall satisfy all requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder as evidenced by an Opinion of Counsel
delivered to the Trustee and the Securities Administrator obtained at the
expense of the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee and the Securities Administrator as their attorneys in fact to undertake
the foregoing steps.
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 Securities Administrator
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.
158
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Seller, the Depositor,
the
Master Servicer, the Securities Administrator and the Trustee, with the consent
of any NIMS Insurer, but without the consent of the Swap Provider (except
to the
extent that the rights or obligations of the Swap Provider under the Swap
Agreement are affected thereby, and except to the extent the ability of the
Securities Administrator on behalf of the Supplemental Interest Trust and
the
Trust Fund to perform fully and timely its obligations under the Swap Agreement
is adversely affected, in which case prior written consent of the Swap Provider
is required), without the consent of the Certificateholders and, with respect
to
any amendment that adversely affects the interest 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, which shall not be inconsistent with the provisions of this
Agreement, or (iv) to conform the terms hereof to the description thereof
provided in the Prospectus; 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 (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, the Master
Servicer, the Securities Administrator, 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,
the Securities Administrator, the Master Servicer and any NIMS
Insurer.
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor, the Master Servicer, the Securities Administrator, and the Trustee
with the consent of any NIMS Insurer, the Majority Certificateholders, but
without the consent of the Swap Provider (except to the extent that the rights
or obligations of the Swap Provider under the Swap Agreement are affected
thereby, and except to the extent the ability of the Trustee on behalf of
the
Supplemental Interest Trust and the Trust Fund to perform fully and timely
its
obligations under the Swap Agreement is adversely affected, in which case
prior
written consent of the Swap Provider is required) and 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.
159
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 Securities Administrator or the Trustee),
otherwise at the expense of the Trust Fund, a copy of such amendment and
the
Opinion of Counsel referred to in the immediately preceding paragraph to
the
Master Servicer, 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, the Master Servicer and Securities Administrator may, but shall
not be
obligated to, enter into any amendment pursuant to this 12.01 Section that
affects its rights, duties and immunities under this Agreement or
otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Trustee at the expense of the Trust
Fund,
but only upon direction of Certificateholders accompanied by an Opinion of
Counsel to the effect that such recordation materially and beneficially affects
the interests of the Certificateholders.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any
number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
160
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust Fund, (ii) entitle such Certificateholder’s
legal representatives or heirs to claim an accounting or to take any action
or
proceeding in any court for a partition or winding up of the Trust Fund or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
Except
as
expressly provided for herein, no Certificateholder shall have any right
to vote
or in any manner otherwise control the operation and management of the Trust
Fund, or the obligations of the parties hereto, nor shall anything herein
set
forth or contained in the terms of the Certificates be construed so as to
constitute the Certificateholders from time to time as partners or members
of an
association; nor shall any Certificateholder be under any liability to any
third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law
upon
or under or with respect to this Agreement, unless such Holder previously
shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall, 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, the
Securities Administrator and the Trustee, that no one or more Holders of
Certificates shall have any right in any manner whatever by virtue of any
provision of this Agreement to affect, disturb or prejudice the rights of
the
Holders of any other of such Certificates or 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.
161
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service, to (a) in the
case of the Seller, to Greenwich Capital Financial Products, Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: General
Counsel (telecopy number (000) 000-0000), or such other address or telecopy
number as may hereafter be furnished to the Depositor, the Master Servicer,
the
Securities Administrator and the Trustee in writing by the Seller, (b) in
the
case of the Trustee, to the Corporate Trust Office or such other address
or
telecopy number as may hereafter be furnished to the Depositor, the Master
Servicer, the Securities Administrator and the Seller in writing by the Trustee,
(c) in the case of the Depositor, to Greenwich Capital
Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Legal (telecopy number (000) 000-0000), or such other address or
telecopy number as may be furnished to the Seller, the Master Servicer, the
Securities Administrator and the Trustee in writing by the Depositor; (d)
in the
case of the Master Servicer or Securities Administrator, for certificate
transfer purposes, at its Corporate Trust Office and for all other purposes
at
X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000, or for overnight delivery, at 0000
Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (Attention: HarborView Mortgage
Loan
Trust 2007-5), Facsimile no.: (000) 000-0000, or such other address or telecopy
number as may be furnished to the Depositor, the Seller and the Trustee in
writing by the Master Servicer or the Securities Administrator, as applicable;
(e) in the case of the Credit Risk Manager, Xxxxxxx Fixed Income Services
Inc.,
0000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: General
Counsel and (f) in the case of the Basis Risk Cap Provider and the Swap
Provider, to The Royal Bank of Scotland plc Xxxxx 0, 000 Xxxxxxxxxxx, Xxxxxx
XX0X 0XX, Attention: Swap Administration, telephone no. x00 00 0000 0000,
facsimile no. x00 00 0000 0000, with a copy to Greenwich Capital Markets,
Inc.,
000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Attention: Legal Department
Derivatives Documentation, telephone no. (000) 000-0000, facsimile no. (000)
000-0000. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first class mail, postage prepaid, at the address of such
Holder as shown in the Certificate Register. Notice of any Event of Default
shall be given by telecopy and by certified mail. Any notice so mailed within
the time prescribed in this Agreement shall be conclusively presumed to have
duly been given when mailed, whether or not the Certificateholder receives
such
notice. A copy of any notice required to be telecopied hereunder shall also
be
mailed to the appropriate party in the manner set forth above. Any notice
required to be delivered by the Securities Administrator to the Depositor
pursuant to Section 3.19 may be delivered by the Securities Administrator,
notwithstanding any provision of this Agreement to the contrary, to Greenwich
Capital Acceptance, Inc., 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx
00000, Attention: Xxxx Xxxxxxx (telephone number (000) 000-0000; fax number
(000) 000-0000; e-mail xxxx.xxxxxxx@xxx.xxx), or such other address or telecopy
number as may be furnished to the Securities Administrator in writing by
the
Depositor.
162
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;
(iii) the
resignation or termination of the Master Servicer, the Securities Administrator
or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class; and
(v) any
change in the location of any Account.
(b) If
the
Trustee is acting as a successor Master Servicer pursuant to Section 7.02
hereof, the Trustee shall notify the Rating Agencies of any event that would
result in the inability of the Trustee to make Advances as successor Master
Servicer:
(c) The
Master Servicer shall promptly furnish to each Rating Agency copies of the
following, unless such documents were made available on the Securities
Administrator’s website:
(i) each
Distribution Date Statement described in Section 5.04 hereof;
(ii) each
annual statement as to compliance described in Section 3.17 hereof;
(iii) each
annual assessment of compliance and attestation report described in Section
3.16
hereof; and
(iv) each
notice delivered pursuant to Section 5.05(b) hereof which relates to the
fact
that the Master Servicer has not made an Advance.
163
(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
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, the Securities Administrator
and
the Trustee in writing of the issuance of any Class of NIM Notes 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 NIM Notes remaining outstanding
or
the NIMS Insurer is owed amounts in respect of its guarantee of payment of
such
NIM Notes. The Swap Provider 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
Swap Agreement remains outstanding or the Swap Provider is owed amounts in
respect of the Swap Agreement. 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 Swap Provider and its successors
and assignees under the Swap 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.
164
SECTION
12.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee or the Securities
Administrator and, when expressly required under this Agreement, to the Master
Servicer. Such instrument or instruments (and the action embodied therein
and
evidenced thereby) are herein sometimes referred to as the “act” of the
Certificateholders signing such instrument or instruments. Proof of execution
of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and conclusive in favor of the
Trustee and the Trust Fund, if made in the manner provided in this
Section 12.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing
may be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by
a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(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
Securities Administrator shall provide to any person to whom a Prospectus
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
(to the extent in the Securities Administrator’s possession). Any reasonable
out-of-pocket expenses incurred by the Securities Administrator in providing
copies of such documents shall be reimbursed by the Depositor.
165
SECTION
12.14. Transfer
of Servicing.
The
Master Servicer 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 Master Servicer
(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. [Reserved]
166
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/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
|
Title:
Senior Vice President
|
GREENWICH
CAPITAL FINANCIAL
PRODUCTS,
INC., as Seller
By: /s/
Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
|
Title:
Senior Vice President
|
XXXXX
FARGO BANK, N.A.,
as
Master
Servicer
By: /s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By: /s/
Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
Vice President
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
as Trustee and Custodian
By: /s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx Xxxxxxxxxx
Title:
Authorized Signer
By: /s/
Xxx
Xxxxx
Name:
Xxx
Xxxxx
Title:
Authorized Xxxxxx
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-1[ ] 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.
ON
OR
PRIOR TO THE TERMINATION OF THE SWAP AGREEMENT, THIS CERTIFICATE MAY NOT
BE
ACQUIRED BY A TRANSFEREE FOR, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN
OR OTHER
RETIREMENT ARRANGEMENT SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975
OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”) OR BY ANY ENTITY DEEMED
TO HOLD THE PLAN ASSETS OF THE FOREGOING, UNLESS IT REPRESENTS AND WARRANTS
THAT
THE ACQUISITION AND HOLDING OF SUCH CERTIFICATE, THROUGHOUT THE PERIOD
THAT IT
HOLDS SUCH CERTIFICATE, WILL NOT RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WHICH IS NOT COVERED
BY
PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 00-00, XXXX 00-0, XXXX 00-00,
XXXX 00-00, XXXX 96-23, THE NON-FIDUCIARY SERVICE PROVIDER EXEMPTION UNDER
SECTION 408(b)(17) OF ERISA OR SOME OTHER APPLICABLE EXEMPTION. EACH INVESTOR
IN
THIS CERTIFICATE WILL BE DEEMED TO REPRESENT THAT IT IS IN COMPLIANCE WITH
THE
FOREGOING AND WILL FURTHER BE DEEMED TO REPRESENT, WARRANT AND COVENANT
THAT IT
WILL NOT SELL, PLEDGE OR OTHERWISE TRANSFER SUCH CERTIFICATE IN VIOLATION
OF THE
FOREGOING.
A-1
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:
|
June
1, 2007
|
|
|
First
Distribution Date:
|
July
19, 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:
|
[ ]
|
|
|
Class:
|
A-1[
]
|
|
|
Assumed
Final Distribution Date:
|
September
2037
|
A-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-5
Class
A-1[ ]
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 fixed and adjustable rate, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the pooling and servicing agreement dated as of June 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, Xxxxx
Fargo Bank, N.A., as master servicer (in such capacity, the “Master Servicer”)
and as securities administrator (in such capacity, the “Securities
Administrator”) and Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as a custodian (in such capacity, a “Custodian”).
Accordingly, the Certificate Principal Balance of this Certificate at any
time
may be less than the Initial Certificate Principal Balance set forth on
the face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller,
the
Master Servicer, the Securities Administrator 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-3
IN
WITNESS WHEREOF, the Securities Administrator and Certificate Registrar
has
caused this Certificate to be duly executed.
Dated:
July ___, 2007
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A,
as
Certificate Registrar
A-4
EXHIBIT
B
FORM
OF SUBORDINATE CERTIFICATE
CLASS
B-[
] 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.
ON
OR
PRIOR TO THE TERMINATION OF THE SWAP AGREEMENT, 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.:
|
[ ]
|
|
|
Cut-Off
Date:
|
June
1, 2007
|
|
|
First
Distribution Date:
|
July
19, 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:
|
[ ]
|
|
|
Class:
|
B-[ ]
|
|
|
Assumed
Final Distribution Date:
|
September
2037
|
B-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-5
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 fixed and adjustable rate, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the pooling and servicing agreement dated as of June 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, Xxxxx
Fargo Bank, N.A., as master servicer (in such capacity, the “Master Servicer”)
and as securities administrator (in such capacity, the “Securities
Administrator”) and Deutsche Bank National Trust Company, as trustee (in such
capacity, the “Trustee”) and as a custodian (in such capacity, a “Custodian”).
Accordingly, the Certificate Principal Balance of this Certificate at any
time
may be less than the Initial Certificate Principal Balance set forth on
the face
hereof, as described herein. This Certificate does not evidence an obligation
of, or an interest in, and is not guaranteed by the Depositor, the Seller,
the
Master Servicer, the Securities Administrator 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 Securities Administrator and Certificate Registrar
has
caused this Certificate to be duly executed.
Dated:
July ___, 2007
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A,
as
Certificate Registrar
B-4
EXHIBIT
C-1
FORM
OF CLASS C CERTIFICATE
THIS
CERTIFICATE IS NOT ENTITLED TO SCHEDULED 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 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 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, (B) TO
A PERSON
IT REASONABLY BELIEVES IS 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, OR (C) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT,
OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY
DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE
OF
TRANSFER IN THE FORM APPEARING IN THE POOLING AND SERVICING
AGREEMENT.
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.:
|
[ ]
|
|
|
Cut-Off
Date:
|
June
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 2007-5
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 fixed and adjustable rate, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable monthly as set forth herein
and in
the pooling and servicing agreement dated as of June 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, Xxxxx Fargo Bank, N.A.,
as
master servicer (in such capacity, the “Master Servicer”) and as securities
administrator (in such capacity, the “Securities Administrator”) and Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”) and as
a custodian (in such capacity, a “Custodian”). Accordingly, the Certificate
Principal Balance of this Certificate at any time may be less than the
Initial
Certificate Principal Balance set forth on the face hereof, as described
herein.
This Certificate does not evidence an obligation of, or an interest in,
and is
not guaranteed by the Depositor, the Seller, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that [________________________] 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 Securities Administrator
or
the Certificate Registrar, or (ii) if the purchaser is an insurance company,
a
representation that the purchaser is an insurance company which is purchasing
such Certificate with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such
Certificate are covered under Sections I and III of PTCE 95-60, or (iii)
an
Opinion of Counsel in accordance with the provisions of the Agreement.
Notwithstanding anything else to the contrary herein, any purported transfer
of
this Certificate to or on behalf of an employee benefit plan subject to
ERISA or
to the Code without the opinion of counsel satisfactory to the Certificate
Registrar as described above shall be void and of no effect.
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 Securities Administrator will provide the Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual
interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class C Certificate in violation of
the
restrictions mentioned above.
C-1-4
IN
WITNESS WHEREOF, the Securities Administrator and Certificate Registrar
has
caused this Certificate to be duly executed.
Dated:
July ___, 2007
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A,
as
Certificate Registrar
C-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.
THIS
CERTIFICATE IS NOT ENTITLED TO SCHEDULED 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 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 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, (B) TO
A PERSON
IT REASONABLY BELIEVES IS 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, OR (C) TO AN INSTITUTIONAL “ACCREDITED
INVESTOR” WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE 1933 ACT THAT IS ACQUIRING THE CERTIFICATE FOR ITS OWN ACCOUNT,
OR FOR
THE ACCOUNT OF SUCH AN INSTITUTIONAL “ACCREDITED INVESTOR,” FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH,
ANY
DISTRIBUTION IN VIOLATION OF THE 1933 ACT, SUBJECT TO THE TRUSTEE’S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF A CERTIFICATE
OF
TRANSFER IN THE FORM APPEARING IN THE POOLING AND SERVICING
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.:
|
[ ]
|
|
|
Cut-Off
Date:
|
June
1, 2007
|
|
|
First
Distribution Date:
|
July
19, 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 2007-5
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 fixed and adjustable rate, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable monthly as set forth herein
and in
the pooling and servicing agreement dated as of June 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, Xxxxx Fargo Bank, N.A.,
as
master servicer (in such capacity, the “Master Servicer”) and as securities
administrator (in such capacity, the “Securities Administrator”) and Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”) and as
a custodian (in such capacity, a “Custodian”). Accordingly, the Certificate
Principal Balance of this Certificate at any time may be less than the
Initial
Certificate Principal Balance set forth on the face hereof, as described
herein.
This Certificate does not evidence an obligation of, or an interest in,
and is
not guaranteed by the Depositor, the Seller, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that [________________________] 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 Securities Administrator
or
the Certificate Registrar, or (ii) if the purchaser is an insurance company,
a
representation that the purchaser is an insurance company which is purchasing
such Certificate with funds contained in an “insurance company general account”
(as such term is defined in Section V(e) of Prohibited Transaction Class
Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such
Certificate are covered under Sections I and III of PTCE 95-60, or (iii)
an
Opinion of Counsel in accordance with the provisions of the Agreement.
Notwithstanding anything else to the contrary herein, any purported transfer
of
this Certificate to or on behalf of an employee benefit plan subject to
ERISA or
to the Code without the opinion of counsel satisfactory to the Certificate
Registrar as described above shall be void and of no effect.
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 Securities Administrator will provide the
Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual
interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class P Certificate in violation of
the
restrictions mentioned above.
C-2-4
IN
WITNESS WHEREOF, the Securities Administrator and Certificate Registrar
has
caused this Certificate to be duly executed.
Dated:
July ___, 2007
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A,
as
Certificate Registrar
C-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”).
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 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, (B) TO
A PERSON
IT REASONABLY BELIEVES IS 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, OR (C) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE 1933 ACT, SUBJECT TO
THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE
DELIVERY OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THE POOLING
AND
SERVICING AGREEMENT.
NEITHER
THIS CERTIFICATE, NOR ANY BENEFICIAL INTEREST IN THIS CERTIFICATE, MAY
BE
TRANSFERRED, SOLD, PLEDGED, OR OTHERWISE DISPOSED OF UNLESS PRIOR TO SUCH
DISPOSITION, THE PROPOSED TRANSFEREE DELIVERS TO THE TRUSTEE (I) AN AFFIDAVIT
STATING (A) THAT THE PROPOSED TRANSFEREE IS NOT A “DISQUALIFIED ORGANIZATION”
WITHIN THE MEANING OF SECTION 860E(E)(5) OF THE INTERNAL REVENUE CODE OF
1986,
AS AMENDED (THE “CODE”) AND IS NOT PURCHASING THE CERTIFICATE ON BEHALF OF A
DISQUALIFIED ORGANIZATION, (B) THAT NO PURPOSE OF SUCH TRANSFER IS TO AVOID
OR
IMPEDE THE ASSESSMENT OR COLLECTION OF TAX, (C) IN THE CASE OF A NON-U.S.
PERSON, THAT THE PROPOSED TRANSFEREE IS A NON-U.S. PERSON THAT HOLDS A
RESIDUAL
CERTIFICATE IN CONNECTION WITH THE CONDUCT OF A TRADE OR BUSINESS WITHIN
THE
UNITED STATES AND HAS FURNISHED THE TRANSFEROR AND THE TRUSTEE WITH AN
EFFECTIVE
INTERNAL REVENUE SERVICE FORM 4224 OR SUCCESSOR FORM AT THE TIME AND IN
THE
MANNER REQUIRED BY THE CODE.
C-3-1
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.
|
Certificate
No.:
|
1
|
|
|
Cut-Off
Date:
|
June
1, 2007
|
|
|
Percentage
Interest:
|
100%
|
|
|
Class:
|
R
|
|
C-3-2
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2007-5
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 fixed and adjustable rate, first lien mortgage loans (the “Mortgage Loans”)
purchased from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Funds
in
respect of this Certificate are distributable monthly as set forth herein
and in
the pooling and servicing agreement dated as of June 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, Xxxxx Fargo Bank, N.A.,
as
master servicer (in such capacity, the “Master Servicer”) and as securities
administrator (in such capacity, the “Securities Administrator”) and Deutsche
Bank National Trust Company, as trustee (in such capacity, the “Trustee”) and as
a custodian (in such capacity, a “Custodian”). Accordingly, the Certificate
Principal Balance of this Certificate at any time may be less than the
Initial
Certificate Principal Balance set forth on the face hereof, as described
herein.
This Certificate does not evidence an obligation of, or an interest in,
and is
not guaranteed by the Depositor, the Seller, the Master Servicer, the Securities
Administrator or the Trustee referred to below or any of their respective
affiliates.
This
certifies that [________________________] 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 Securities Administrator
or
the Certificate Registrar, or (ii) if this Certificate has been the subject
of
an ERISA-qualifying underwriting, 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-3-3
Each
Holder of this Certificate will be deemed to have agreed to be bound by
the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest
in this
Certificate may be transferred without delivery to the Trustee and the
Certificate Registrar of (a) a transfer affidavit of the proposed transferee
and
(b) a transfer certificate of the transferor, each of such documents to
be in
the form described in the Agreement, (iii) each person holding or acquiring
any
Ownership Interest in this Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee and the
Certificate Registrar as required pursuant to the Agreement, (iv) each
person
holding or acquiring an Ownership Interest in this Certificate must agree
not to
transfer an Ownership Interest in this Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any
attempted
or purported transfer of any Ownership Interest in this Certificate in
violation
of such restrictions will be absolutely null and void and will vest no
rights in
the purported transferee. The Securities Administrator will provide the
Internal
Revenue Service and any pertinent persons with the information needed to
compute
the tax imposed under the applicable tax laws on transfers of residual
interests
to disqualified organizations, if any person other than a Permitted Transferee
acquires an Ownership Interest on a Class R Certificate in violation of
the
restrictions mentioned above.
C-3-4
IN
WITNESS WHEREOF, the Securities Administrator and Certificate Registrar
has
caused this Certificate to be duly executed.
Dated:
July ___, 2007
XXXXX
FARGO BANK, N.A.,
as
Securities Administrator
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
Xxxxx
Fargo Bank, N.A,
as
Certificate Registrar
C-3-5
EXHIBIT
D
FORM
OF REVERSE CERTIFICATE
HARBORVIEW
MORTGAGE LOAN TRUST 2007-5
Mortgage
Loan Pass-Through Certificates, Series 2007-5
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
2007-5 (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 July 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 Master Servicer,
the
Securities Administrator, 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 multiples of $1 in excess thereof, provided,
however,
that
the underwriter will only sell offered certificates to initial investors
in
minimum total investment amounts of $100,000.
Each
of
the Class C and Class P Certificates shall be issued in a minimum Percentage
Interest of 5% and in integral percentage multiples of 1% in excess
thereof.
The
Class
R Certificate shall be issued as a single certificate and will be maintained
in
physical form.
The
Depositor, the Seller, the Master Servicer, the Securities Administrator,
the
Trustee, the Certificate Registrar and any agent of the foregoing may treat
the
Person in whose name this Certificate is registered as the owner hereof
for all
purposes, and none of the Depositor, the Seller, the Trustee, the Master
Servicer, the Securities Administrator, 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 and REO Properties 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.
D-2
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-3
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-4
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-5
EXHIBIT
E
[RESERVED]
E-1
EXHIBIT
F
REQUEST
FOR RELEASE
Date
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as [Trustee]
[Custodian, on behalf of the Trustee] under that certain Pooling and Servicing
Agreement dated as of June 1, 2007, among Greenwich Capital Acceptance,
Inc., as
Depositor, Greenwich Capital Financial Products, Inc., as Seller, Xxxxx
Fargo
Bank, N.A., as Master Servicer and Securities Administrator, Xxxxxxx Fixed
Income Services Inc., as Credit Risk Manager and Deutsche Bank National
Trust
Company, as Trustee and Custodian (the “Pooling and Servicing Agreement”), the
undersigned [Master Servicer] [Servicer] hereby requests a release of the
Mortgage File held by you as [Trustee] [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 [Master Servicer] [Servicer] hereby certifies that
all
amounts received in connection with the loan have been or will be credited
to a
Servicing Account or the Distribution Account (whichever is applicable)
pursuant
to the Pooling and Servicing Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The [Master Servicer] [Servicer] hereby certifies that
a
Qualified Substitute Mortgage Loan has been assigned and delivered to you
along
with the related Mortgage File pursuant to the Pooling and Servicing
Agreement.)
4. Mortgage
Loan repurchased. (The [Master Servicer] [Servicer] hereby certifies that
the
Purchase Price has been credited to a Servicing Account or the Distribution
Account (whichever is applicable) pursuant to the Pooling and Servicing
Agreement.)
5. Other.
(Describe)
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
[Master Servicer] [Servicer]]
By:__________________________________
Name:
Title:
Servicing Officer
F-2
EXHIBIT
G-1
FORM
OF RECEIPT OF MORTGAGE NOTE
RECEIPT
OF MORTGAGE NOTE
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series
2007-5
|
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling and Servicing Agreement dated as of June
1, 2007,
among Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital
Financial Products, Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master
Servicer
and Securities Administrator, Xxxxxxx Fixed Income Services Inc., as Credit
Risk
Manager and Deutsche Bank National Trust Company, as Trustee and Custodian,
we
hereby acknowledge the receipt of the original Mortgage Note with respect
to
each Mortgage Loan listed on Exhibit 1, with any exceptions thereto listed
on
Exhibit 2.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee and Custodian
By:
Name:
Title:
Dated:
G-1-1
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be retained in a separate closing binder entitled “HarborView 2007-5 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
EXCEPTION
REPORT
[To
be retained in a separate closing binder entitled “HarborView 2007-5 Mortgage
Loan Schedule” at the Washington DC offices of XxXxx Xxxxxx LLP]
Exhibit-2-1
EXHIBIT
G-2
FORM
OF INTERIM CERTIFICATION OF TRUSTEE
INTERIM
CERTIFICATION OF TRUSTEE
[date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of June 1, 2007, among Greenwich
Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products,
Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities
Administrator, Xxxxxxx Fixed Income Services Inc., as Credit
Risk Manager
and Deutsche Bank National Trust Company, as Trustee and Custodian,
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series 2007-5
|
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the above-captioned Pooling and Servicing
Agreement (the “Pooling and Servicing Agreement”), the undersigned, as Trustee,
hereby certifies that, as to each Mortgage Loan listed in the Mortgage
Loan
Schedule (other than any Mortgage Loan paid in full or listed on the attached
schedule) it has received:
|
(i)
|
all
documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling and Servicing Agreement are in its
possession;
|
|
(ii)
|
such
documents have been reviewed by the Trustee and have not been
mutilated,
damaged or torn and relate to such Mortgage Loan;
and
|
|
(iii)
|
based
on the Trustee’s examination and only as to the foregoing, the information
set forth in the Mortgage Loan Schedule that corresponds to items
(i),
(ii), (xx), (xxi) and (xxiv) of the Mortgage Loan Schedule accurately
reflects information set forth in the Mortgage
File.
|
G-2-1
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and related to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained
in each
Mortgage File beyond the review specifically required in the Pooling and
Servicing Agreement. The Trustee makes no representations as to: (i) the
validity, legality, sufficiency, enforceability or genuineness of any of
the
documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
Capitalized
words and phrases used herein but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee and Custodian
By:
Name:
Title:
G-2-2
EXHIBIT
G-3
FORM
OF FINAL CERTIFICATION OF TRUSTEE
FINAL
CERTIFICATION OF TRUSTEE
[date]
|
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Greenwich
Capital Financial Products, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
|
|
|
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
|
|
Re:
|
Pooling
and Servicing Agreement dated as of June 1, 2007, among Greenwich
Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products,
Inc., as Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and
Securities
Administrator, Xxxxxxx Fixed Income Services Inc., as Credit
Risk Manager
and Deutsche Bank National Trust Company, as Trustee and Custodian,
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series 2007-5
|
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 but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
DEUTSCHE
BANK NATIONAL TRUST COMPANY, as Trustee and Custodian
By:
Name:
Title:
G-3-2
EXHIBIT
H
FORM
OF LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
______________________ who first being duly sworn deposes and says: Deponent
is
______________________ of Greenwich Capital Financial Products, Inc. (the
“Seller”) and who has personal knowledge of the facts set out in this
affidavit.
On
___________________, _________________________ did execute and deliver
a
promissory note in the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is currently
lost and
unavailable after diligent search has been made. The Seller’s records show that
an amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and such Seller is still owner and holder in due course
of said
lost note.
The
Seller executes this Affidavit for the purpose of inducing Deutsche Bank
National Trust Company, as trustee on behalf of HarborView Mortgage Loan
Trust
2007-5, Mortgage Loan Pass-Through Certificates, Series 2007-5, to accept
the
transfer of the above described loan from the Seller.
The
Seller agrees to indemnify Deutsche Bank National Trust Company and Greenwich
Capital Acceptance, Inc. and hold them harmless for any losses incurred
by such
parties resulting from the fact that the above described Note has been
lost or
misplaced.
By:
__________________________________
__________________________________
|
STATE
OF
|
)
|
|
|
)
|
ss:
|
|
|
COUNTY
OF
|
)
|
On
this
____ day of ___________ 20__, before me, a Notary Public, in and for said
County
and State, appeared ________________________, who acknowledged the extension
of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness
my hand and Notarial Seal this ____ day of _______ 20__.
_______________________________
_______________________________
My
commission expires _______________.
H-1
EXHIBIT
I-1
FORM
OF ERISA REPRESENTATION FOR RESIDUAL CERTIFICATES
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series
2007-5, Class R
|
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 2007-5, 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 June 1, 2007 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager and Deutsche
Bank
National Trust Company, as Trustee and Custodian, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and the Certificate
Registrar have received a certificate from such transferee in the form
hereof.
Capitalized
words and phrases used herein but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
I-1-2
EXHIBIT
I-2
FORM
OF ERISA REPRESENTATION
FOR
ERISA RESTRICTED TRUST CERTIFICATES
[Date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
Re:
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates,
Series 2007-5, 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. In
the
case of ERISA-Restricted Certificates, 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 2007-5,
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.
I-2-1
3. In
the
case of ERISA-Restricted Trust Certificates, 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.
4. The
Transferee hereby acknowledges that under the terms of the Pooling and
Servicing
Agreement dated as of June 1, 2007 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller, Xxxxx Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx Fixed Income Services Inc., as Credit Risk Manager and Deutsche
Bank
National Trust Company, as Trustee and Custodian, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and the Certificate
Registrar have received a certificate from such transferee in the form
hereof.
Capitalized
words and phrases used herein shall have the respective meanings assigned
to
them in the Pooling and Servicing Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
_________________________________
[Transferee]
By:______________________________
Name:
Title:
X-0-0
XXXXXXX
X-0
FORM
OF INVESTMENT LETTER [NON-RULE 144A]
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
|
Re:
|
HarborView
Mortgage Loan Trust Mortgage Loan Pass-Through Certificates,
Series
2007-5, Class [C][P][R]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the Class [C][P][R] Certificates (the
“Certificates”) of the above-captioned series, we certify that (a) we understand
that the Certificates are not being registered under the Securities Act
of 1933,
as amended (the “Act”), or any state securities laws and are being transferred
to us in a transaction that is exempt from the registration requirements
of the
Act and any such laws, (b) we are an “accredited investor,” as defined in
Regulation D under the Act, and have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and risks
of
investments in the Certificates, (c) we have had the opportunity to ask
questions of and receive answers from the Depositor concerning the purchase
of
the Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with
a
view to any distribution of such Certificates (but without prejudice to
our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (f) below), (e) we have not offered or sold any
Certificates to, or solicited offers to buy any Certificates from, any
person,
or otherwise approached or negotiated with any person with respect thereto,
or
taken any other action which would result in a violation of Section 5 of
the
Act, and (f) we will not sell, transfer or otherwise dispose of any Certificates
unless (1) such sale, transfer or other disposition is made pursuant to
an
effective registration statement under the Act or is exempt from such
registration requirements, and if requested, we will at our expense provide
an
opinion of counsel satisfactory to the addressees of this Certificate that
such
sale, transfer or other disposition may be made pursuant to an exemption
from
the Act, (2) the purchaser or transferee of such Certificate has executed
and
delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied
with any
conditions for transfer set forth in the Pooling and Servicing
Agreement.
J-1-1
Capitalized
words and phrases used herein but not otherwise defined herein shall have
the
respective meanings assigned to them in the Pooling and Servicing
Agreement.
Very
truly yours,
[NAME
OF
TRANSFEREE]
By:
Authorized
Officer
X-0-0
XXXXXXX
X-0
FORM
OF RULE 144A INVESTMENT LETTER
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
0000
Xxx
Xxxxxxxxx Xx.
Xxxxxxxx,
XX 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2007-5, Mortgage Loan Pass-Through Certificates,
Series 2007-5, Class [C][P][R]
|
Ladies
and Gentlemen:
In
connection with our acquisition of the Class [C][P][R] 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 but not otherwise defined 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 $ 1
in
securities (except for the excluded securities referred to below) as of
the end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in
the
category marked below.
___ Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association
or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal
Revenue
Code of 1986, as amended.
___ Bank.
The
Buyer (a) is a national bank or banking institution organized under the
laws of
any State, territory or the District of Columbia, the business of which
is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___ Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
|
1
|
Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer
must own
and/or invest on a discretionary basis at least $10,000,000 in
securities.
|
J-2-3
___ Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___ State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the
Employee
Retirement Income Security Act of 1974.
___ Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors
Act of
1940.
___ Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___ Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities
that
are part of an unsold allotment to or subscription by the Buyer, if the
Buyer is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For
purposes of determining the aggregate amount of securities owned and/or
invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value,
and
(ii) no current information with respect to the cost of those securities
has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount,
the
Buyer may have included securities owned by subsidiaries of the Buyer,
but only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and
if the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself
a
reporting company under the Securities Exchange Act of 1934, as
amended.
v. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the
seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales
to the
Buyer may be in reliance on Rule 144A.
vi. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each
of the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of
the
date of such purchase. In addition, if the Buyer is a bank or savings and
loan
is provided above, the Buyer agrees that it will furnish to such parties
updated
annual financial statements promptly after they become available.
J-2-4
Print
Name of Buyer
By:
Name:
Title:
Date:
X-0-0
XXXXX
0 XX XXXXXXX X-0
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates
with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended
and (ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or
the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their
market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence
applies,
the securities may be valued at market.
___ The
Buyer
owned $
in
securities (other than the excluded securities referred to below) as of
the end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$
in
securities (other than the excluded securities referred to below) as of
the end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii)
bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
J-2-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the
Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more
sales to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will
only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until
such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of
such
purchase.
Print
Name of Buyer or Adviser
By:
Name:
Title:
IF
AN
ADVISER:
Print
Name of Buyer
Date:
J-2-7
EXHIBIT
K
FORM
OF TRANSFEROR CERTIFICATE
[date]
Greenwich
Capital Acceptance, Inc.
000
Xxxxxxxxx Xxxx
Xxxxxxxxx,
Xxxxxxxxxxx 00000
Xxxxx
Fargo Bank, N.A.
Xxxxx
Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
HarborView
Mortgage Loan Trust 2007-5 Mortgage Loan Pass-Through Certificates,
Series
2007-5, Class R
|
Ladies
and Gentlemen:
In
connection with our proposed transfer of an Ownership Interest in the Class
R
Certificates, 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 Certificates 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 CERTIFICATES
PURSUANT
TO SECTION 6.02(e)
HARBORVIEW
MORTGAGE LOAN TRUST 2007-5
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2007-5,
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 Certificates
(the
“Certificate”) issued pursuant to the Pooling and Servicing Agreement,
(the “Agreement”) dated as of June 1, 2007, relating to the
above-referenced Certificates, among Greenwich Capital Acceptance,
Inc.,
as Depositor, Greenwich Capital Financial Products, Inc., as
Seller, Xxxxx
Fargo Bank, N.A., as Master Servicer and Securities Administrator,
Xxxxxxx
Fixed Income Services Inc., as Credit Risk Manager and Deutsche
Bank
National Trust Company, as Trustee and Custodian. Capitalized
terms used,
but not defined herein, shall have the meanings ascribed to such
terms in
the Agreement. The Transferee has authorized the undersigned
to make this
affidavit on behalf of the
Transferee.
|
|
2.
|
The
Transferee is, as of the date hereof, and will be, as of the
date of the
Transfer, a Permitted Transferee. The Transferee is acquiring
its
Ownership Interest for its own account and not in a capacity
as trustee,
nominee or agent for another party.
|
|
3.
|
The
Transferee has been advised of, and understands that (i) a tax
will be
imposed on Transfers of the Certificate to Persons that are not
Permitted
Transferees; (ii) such tax will be imposed on the transferor,
or, if such
Transfer is through an agent (which includes a broker, nominee
or
middleman) for a Person that is not a Permitted Transferee, on
the agent;
and (iii) the Person otherwise liable for the tax shall be relieved
of
liability for the tax if the subsequent Transferee furnished
to such
Person an affidavit that such subsequent Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not
have actual
knowledge that the affidavit is false. The Transferee has provided
financial statements or other financial information requested
by the
Transferor in connection with the transfer of the Certificate
to permit
the Transferor to assess the financial capability of the Transferee
to pay
such taxes.
|
|
4.
|
The
Transferee has been advised of, and understands that a tax may
be imposed
on a “pass-through entity” holding the Certificate if, at any time during
the taxable year of the pass-through entity, a Disqualified Organization
is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period
with respect
to which the record holder furnishes to the pass-through entity
an
affidavit that such record holder is not a Disqualified Organization
and
the pass-through entity does not have actual knowledge that such
affidavit
is false. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common
trust fund, a
partnership, trust or estate, and certain cooperatives and, except
as may
be provided in Treasury Regulations, persons holding interests
in
pass-through entities as a nominee for another
Person.)
|
L-1
|
5.
|
The
Transferee has reviewed the provisions of Section 6.02(e) of
the Agreement
and understands the legal consequences of the acquisition of
an Ownership
Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding
voiding
the Transfer and mandatory sales. The Transferee expressly agrees
to be
bound by and to abide by the provisions of Section 6.02(e) of
the
Agreement and the restrictions noted on the face of the Certificate.
The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to
the
Transferee contemplated hereby null and
void.
|
|
6.
|
The
Transferee agrees to require a Transfer Affidavit from any Person
to whom
the Transferee attempts to Transfer its Ownership Interest in
the
Certificate, and the Transferee will not Transfer its Ownership
Interest
or cause any Ownership Interest to be Transferred to any Person
that the
Transferee knows is not a Permitted Transferee. In connection
with any
such Transfer by the Transferee, the Transferee agrees to deliver
to the
Trustee a certificate substantially in the form set forth as
Exhibit K to
the Agreement (a “Transferor
Certificate”).
|
|
7.
|
The
Transferee does not have the intention to impede the assessment
or
collection of any tax legally required to be paid with respect
to the
Certificate.
|
|
8.
|
The
Transferee’s taxpayer identification number is .
|
|
9.
|
The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of the REMIC provisions and that the
transferor of a noneconomic residual interest will remain liable
for any
taxes due with respect to the income on such residual interest,
unless no
significant purpose of the transfer was to impede the assessment
or
collection of tax.
|
L-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed
on its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20 .
[NAME
OF
TRANSFEREE]
By:
Name:
Title:
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named
,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act
and deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this
day
of
,
20 .
NOTARY
PUBLIC
|
My
Commission expires the
day of ,
20 .
|
L-3
EXHIBIT
M
FORM
OF BACK-UP XXXXXXXX-XXXXX CERTIFICATION
[ ]
[ ]
[ ]
[_______],
the [_______] of [_______] (the “Company”) hereby certifies to the Depositor,
the Master Servicer and the Securities Administrator, 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, the Master Servicer
and
the Securities Administrator. Any material instances of noncompliance described
in such reports have been disclosed to the Depositor, the Master Servicer
and
the Securities Administrator. Any material instance of noncompliance with
the
Servicing Criteria has been disclosed in such reports.
M-1
Capitalized
terms used but not defined herein have the meanings ascribed to them in
the
Pooling and Servicing Agreement dated as of June 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, Xxxxx Fargo Bank, N.A., as Master
Servicer and Securities Administrator and Deutsche Bank National Trust
Company,
as Trustee and Custodian. Capitalized terms used but not defined herein
shall
have the meanings assigned to such terms in the Pooling and Servicing
Agreement.
[_______]
as
[_______]
By:
Name:
Title:
Date:
M-2
EXHIBIT
N
LIST
OF SERVICERS AND SERVICING AGREEMENTS
1. The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of May
1, 2006,
as amended by that certain Amendment Number One, dated as of June 1, 2007,
between GCFP, American Home and American Home Servicing, as reconstituted
pursuant to a Reconstituted Servicing Agreement dated as of June 1, 2007,
by and
among GCFP, Greenwich Capital Acceptance, Inc., American Home and American
Home
Servicing, and acknowledged by Xxxxx Fargo Bank, N.A., as master servicer
and
securities administrator, and by Deutsche Bank National Trust Company,
as
trustee, as the same may be amended from time to time, and any assignments
and
conveyances related to the Mortgage Loans..
N-1
EXHIBIT
O
TRANSACTION
PARTIES
|
Credit
Risk Manager
|
Xxxxxxx
Fixed Income Services Inc.
|
|
Custodian
|
Deutsche
Bank National Trust Company
|
|
Master
Servicer
|
Xxxxx
Fargo Bank, N.A.
|
|
Originator
|
American
Home Mortgage Corp.
|
|
PMI
Insurer
|
N/A
|
|
Securities
Administrator
|
Xxxxx
Fargo Bank, N.A.
|
|
Seller
|
Greenwich
Capital Financial Products, Inc.
|
|
Servicer
|
American
Home Mortgage Servicing, Inc.
|
|
Subservicer
|
N/A
|
|
Basis
Risk Cap Provider
|
The
Royal Bank of Scotland plc
|
|
Swap
Provider
|
The
Royal Bank of Scotland plc
|
|
Trustee
|
Deutsche
Bank National Trust Company
|
O-1
EXHIBIT
P
FORM
OF SUBSEQUENT TRANSFER AGREEMENT
P-1
EXHIBIT
Q
SERVICING
CRITERIA
The
assessment of compliance to be delivered by Xxxxx Fargo Bank, N.A. (“Xxxxx
Fargo”), in its capacities as Master Servicer and Securities Administrator,
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria:”
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
X
|
Q-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
Q-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Xxxxx Fargo
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
X
|
Q-3
The
assessment of compliance to be delivered by Deutsche Bank National Trust
Company
(“Deutsche Bank”), in its capacity as Custodian, shall address, at a minimum,
the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Deutsche Bank
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
Q-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Deutsche Bank
|
|
|
Reference
|
Criteria
|
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements.
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance
with the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements,
and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
Q-5
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
for Deutsche Bank
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period
specified in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage
loan
documents and state laws; and (C) such funds are returned to
the obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
Q-6
EXHIBIT
R
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 Securities
Administrator 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 [Monthly Statement]
|
Servicer
Master
Servicer
Securities
Administrator
|
|
|
Any
information required by 1121 which is NOT included on the [Monthly
Statement]
|
Depositor
|
|
|
Item
2: Legal Proceedings
Any
legal proceeding pending against the following entities or their
respective property, that is material to Certificateholders,
including any
proceedings known to be contemplated by governmental
authorities:
|
||
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
|
▪
Depositor
|
Depositor
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Custodian
|
Custodian
|
|
|
▪
1110(b) Originator
|
Depositor
|
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
R-1
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
||
|
Item
on Form 10-D
|
Party
Responsible
|
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
|
Item
3: Sale of Securities and Use of Proceeds
Information
from Item 2(a) of Part II of Form 10-Q:
With
respect to any sale of securities by the sponsor, depositor or
issuing
entity, that are backed by the same asset pool or are otherwise
issued by
the issuing entity, whether or not registered, provide the sales
and use
of proceeds information in Item 701 of Regulation S-K. Pricing
information
can be omitted if securities were not registered.
|
Depositor
|
|
|
Item
4: Defaults Upon Senior Securities
Information
from Item 3 of Part II of Form 10-Q:
Report
the occurrence of any Event of Default (after expiration of any
grace
period and provision of any required notice)
|
Securities
Administrator
Trustee
|
|
|
Item
5: Submission of Matters to a Vote of Security
Holders
Information
from Item 4 of Part II of Form 10-Q
|
Securities
Administrator
Trustee
|
|
|
Item
6: Significant Obligors of Pool Assets
Item
1112(b) - Significant
Obligor Financial Information*
|
Depositor
|
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||
|
Item
7: Significant Enhancement Provider Information
Item
1114(b)(2) - Credit Enhancement Provider Financial
Information*
|
||
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
|
|
Item
1115(b) - Derivative Counterparty Financial
Information*
|
R-2
|
ADDITIONAL
FORM 10-D DISCLOSURE
|
||
|
Item
on Form 10-D
|
Party
Responsible
|
|
|
▪
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.
|
||
|
Item
8: Other Information
Disclose
any information required to be reported on Form 8-K during the
period
covered by the Form 10-D but not reported
|
Any
party responsible for the applicable Form 8-K Disclosure
item
|
|
|
Item
9: Exhibits
|
||
|
Monthly
Statement to Certificateholders
|
Securities
Administrator
|
|
|
Exhibits
required by Item 601 of Regulation S-K, such as material
agreements
|
Depositor
|
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
||
|
Item
on Form 10-K
|
Party
Responsible
|
|
|
Item
1B: Unresolved Staff Comments
|
Depositor
|
|
|
Item
9B: Other Information
Disclose
any information required to be reported on Form 8-K during the
fourth
quarter covered by the Form 10-K but not reported
|
Any
party responsible for disclosure items on Form 8-K
|
|
|
Item
15: Exhibits, Financial Statement Schedules
|
Securities
Administrator
Depositor
|
|
|
Reg
AB Item 1112(b): Significant Obligors of Pool
Assets
|
||
|
Significant
Obligor Financial Information*
|
Depositor
|
|
|
*This
information need only be reported on the Form 10-D for the distribution
period in which updated information is required pursuant to the
Item.
|
||
|
Reg
AB Item 1114(b)(2): Credit Enhancement Provider Financial
Information
|
||
|
▪
Determining applicable disclosure threshold
|
Depositor
|
|
|
▪
Requesting required financial information (including any required
accountants’ consent to the use thereof) or effecting incorporation by
reference
|
Depositor
|
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
proceeding sknown to be contemplated by governmental
authorities:
|
||
|
▪
Issuing Entity (Trust Fund)
|
Trustee,
Master Servicer, Securities Administrator and Depositor
|
|
|
▪
Sponsor (Seller)
|
Seller
(if a party to the Pooling and Servicing Agreement) or
Depositor
|
|
|
▪
Depositor
|
Depositor
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Custodian
|
Custodian
|
|
|
▪
1110(b) Originator
|
Depositor
|
|
|
▪
Any 1108(a)(2) Servicer (other than the Master Servicer or Securities
Administrator)
|
Servicer
|
|
|
▪
Any other party contemplated by 1100(d)(1)
|
Depositor
|
|
|
Reg
AB Item 1119: Affiliations and Relationships
|
||
|
Whether
(a) the Sponsor (Seller), Depositor or Issuing Entity is an affiliate
of
the following parties, and (b) to the extent known and material,
any of
the following parties are affiliated with one another:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
R-4
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
||
|
Item
on Form 10-K
|
Party
Responsible
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
|
Whether
there are any “outside the ordinary course business arrangements” other
than would be obtained in an arm’s length transaction between (a) the
Sponsor (Seller), Depositor or Issuing Entity on the one hand,
and (b) any
of the following parties (or their affiliates) on the other hand,
that
exist currently or within the past two years and that are material
to a
Certificateholder’s understanding of the Certificates:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
|
Whether
there are any specific relationships involving the transaction
or the pool
assets between (a) the Sponsor (Seller), Depositor or Issuing
Entity on
the one hand, and (b) any of the following parties (or their
affiliates)
on the other hand, that exist currently or within the past two
years and
that are material:
|
Depositor
as to (a)
Sponsor/Seller
as to (a)
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Any other 1108(a)(3) servicer
|
Servicer
|
|
|
▪
Any 1110 Originator
|
Depositor/Sponsor
|
|
|
▪
Any 1112(b) Significant Obligor
|
Depositor/Sponsor
|
|
|
▪
Any 1114 Credit Enhancement Provider
|
Depositor/Sponsor
|
R-5
|
ADDITIONAL
FORM 10-K DISCLOSURE
|
||
|
Item
on Form 10-K
|
Party
Responsible
|
|
|
▪
Any 1115 Derivate Counterparty Provider
|
Depositor/Sponsor
|
|
|
▪
Any other 1101(d)(1) material party
|
Depositor/Sponsor
|
|
FORM
8-K DISCLOSURE INFORMATION
|
||
|
Item
on Form 8-K
|
Party
Responsible
|
|
|
Item
1.01- Entry into a Material Definitive Agreement
Disclosure
is required regarding entry into or amendment of any definitive
agreement
that is material to the securitization, even if depositor is
not a party.
Examples:
servicing agreement, custodial agreement.
Note:
disclosure not required as to definitive agreements that are
fully
disclosed in the prospectus
|
All
parties
|
|
|
Item
1.02- Termination of a Material Definitive Agreement
Disclosure
is required regarding termination of any definitive agreement
that is
material to the securitization (other than expiration in accordance
with
its terms), even if depositor is not a party.
Examples:
servicing agreement, custodial agreement.
|
All
parties
|
|
|
Item
1.03- Bankruptcy or Receivership
Disclosure
is required regarding the bankruptcy or receivership, with respect
to any
of the following:
|
Depositor
|
|
|
▪
Sponsor (Seller)
|
Depositor/Sponsor
(Seller)
|
|
|
▪
Depositor
|
Depositor
|
|
|
▪
Master Servicer
|
Master
Servicer
|
|
|
▪
Affiliated Servicer
|
Servicer
|
|
|
▪
Other Servicer servicing 20% or more of the pool assets at the
time of the
report
|
Servicer
|
|
|
▪
Other material servicers
|
Servicer
|
|
|
▪
Trustee
|
Trustee
|
|
|
▪
Securities Administrator
|
Securities
Administrator
|
|
|
▪
Significant Obligor
|
Depositor
|
R-6
|
FORM
8-K DISCLOSURE INFORMATION
|
||
|
Item
on Form 8-K
|
Party
Responsible
|
|
|
▪
Credit Enhancer (10% or more)
|
Depositor
|
|
|
▪
Derivative Counterparty
|
Depositor
|
|
|
▪
Custodian
|
Custodian
|
|
|
Item
2.04- Triggering Events that Accelerate or Increase a Direct
Financial
Obligation or an Obligation under an Off-Balance Sheet
Arrangement
Includes
an early amortization, performance trigger or other event, including
event
of default, that would materially alter the payment priority/distribution
of cash flows/amortization schedule.
Disclosure
will be made of events other than waterfall triggers which are
disclosed
in the monthly statements to the certificateholders.
|
Depositor
Master
Servicer
Securities
Administrator
|
|
|
Item
3.03- Material Modification to Rights of Security
Holders
Disclosure
is required of any material modification to documents defining
the rights
of Certificateholders, including the Pooling and Servicing
Agreement.
|
Securities
Administrator
Trustee
Depositor
|
|
|
Item
5.03- Amendments of Articles of Incorporation or Bylaws; Change
of Fiscal
Year
Disclosure
is required of any amendment “to the governing documents of the issuing
entity”.
|
Depositor
|
|
|
Item
6.01- ABS Informational and Computational
Material
|
Depositor
|
|
|
Item
6.02- Change of Servicer or Securities Administrator
Requires
disclosure of any removal, replacement, substitution or addition
of any
master servicer, affiliated servicer, other servicer servicing
10% or more
of pool assets at time of report, other material servicers or
trustee.
|
Master
Servicer/Securities Administrator/Depositor/
Servicer/Trustee
|
|
|
Reg
AB disclosure about any new servicer or master servicer is also
required.
|
Servicer/Master
Servicer/Depositor
|
|
|
Reg
AB disclosure about any new Trustee is also required.
|
Trustee
|
|
|
Item
6.03- Change in Credit Enhancement or External
Support
Covers
termination of any enhancement in manner other than by its terms,
the
addition of an enhancement, or a material change in the enhancement
provided. Applies to external credit enhancements as well as
derivatives.
|
Depositor/Securities
Administrator/Trustee
|
R-7
|
FORM
8-K DISCLOSURE INFORMATION
|
||
|
Item
on Form 8-K
|
Party
Responsible
|
|
|
Reg
AB disclosure about any new enhancement provider is also
required.
|
Depositor
|
|
|
Item
6.04- Failure to Make a Required Distribution
|
Securities
Administrator
Trustee
|
|
|
Item
6.05- Securities Act Updating Disclosure
If
any material pool characteristic differs by 5% or more at the
time of
issuance of the securities from the description in the final
prospectus,
provide updated Reg AB disclosure about the actual asset
pool.
|
Depositor
|
|
|
If
there are any new servicers or originators required to be disclosed
under
Regulation AB as a result of the foregoing, provide the information
called
for in Items 1108 and 1110 respectively.
|
Depositor
|
|
|
Item
7.01- Reg FD Disclosure
|
All
parties
|
|
|
Item
8.01- Other Events
Any
event, with respect to which information is not otherwise called
for in
Form 8-K, that the registrant deems of importance to
certificateholders.
|
Depositor
|
|
|
Item
9.01- Financial Statements and Exhibits
|
Responsible
party for reporting/disclosing the financial statement or
exhibit
|
R-8
EXHIBIT
S
FORM
OF SECURITIES ADMINISTRATOR CERTIFICATE
|
Re:
|
HarborView
Mortgage Loan Trust (the “Trust”) Mortgage Loan Pass-Through Certificates,
Series 2007-5
|
I,
[identify the certifying individual], a [title] of Xxxxx Fargo Bank, N.A.,
as
Securities Administrator 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 Securities Administrator,
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
Securities
Administrator
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 June 1, 2007 (the “Pooling and Servicing
Agreement”) among the Depositor, Greenwich Capital Financial Products, Inc., as
the seller, Xxxxxxx Fixed Income Services Inc., as credit risk manager,
Xxxxx
Fargo Bank, N.A., as master servicer and as securities administrator and
Deutsche Bank national Trust Company, as trustee and as custodian .
Xxxxx
Fargo Bank, N.A.,
as
Trustee
By:___________________________
[Name]
[Title]
[Date]
S-1
EXHIBIT
T
ADDITIONAL
DISCLOSURE NOTIFICATION
Xxxxx
Fargo Bank, N.A. as Securities Administrator
Olx
Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Fax:
(000) 000-0000
E-mail:
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx
Attn:
Corporate Trust Services - HARBORVIEW MORTGAGE LOAN TRUST 2007-5-SEC REPORT
PROCESSING
RE:
**Additional Form [ ] Disclosure**Required
Ladies
and Gentlemen:
In
accordance with Section 3.19(a)(ii) of the Pooling and Servicing Agreement
dated
as of June 1, 2007, among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, Xxxxx Fargo Bank,
N.A.,
as Master Servicer and Securities Administrator, Xxxxxxx Fixed Income Services
Inc., as Credit Risk Manager and Deutsche Bank National Trust Company,
as
Trustee and Custodian, the undersigned, as [ ], hereby notifies you that
certain
events have come to our attention that [will][may] need to be disclosed
on Form
[ ].
Description
of Additional Form [ ] Disclosure:
List
of
Any Attachments hereto to be included in the Additional Form [ ]
Disclosure:
Any
inquiries related to this notification should be directed to [ ], phone
number:
[ ]; email address: [ ].
[NAME
OF
PARTY]
as
[role]
T-1
By:
__________________
Name:
Title:
T-2
EXHIBIT
U
BASIS
RISK CAP AGREEMENT
U-1
EXHIBIT
V
SWAP
AGREEMENT
V-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
Sched-I-1
