GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller and U.S. BANK NATIONAL ASSOCIATION, Trustee POOLING AGREEMENT Dated as of January 1, 2006
EXECUTION
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
and
U.S.
BANK
NATIONAL ASSOCIATION,
Trustee
Dated
as
of January 1, 2006
Mortgage
Loan Pass-Through Certificates, Series 2006-1
| Page | |
|
ARTICLE
I
DEFINITIONS; DECLARATION OF TRUST
|
8
|
|
SECTION
1.01.Defined
Terms.
|
8
|
|
SECTION
1.02.Accounting.
|
56
|
|
|
|
|
ARTICLE
II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
56
|
|
SECTION
2.01. Conveyance of Mortgage Loans.
|
56
|
|
SECTION
2.02. Acceptance by Trustee.
|
60
|
|
SECTION
2.03. Repurchase or Substitution of Mortgage Loans by the Originator
and the Seller.
|
61
|
|
SECTION
2.04. Representations and Warranties of the Seller with Respect to
the
Mortgage Loans.
|
65
|
|
SECTION
2.05. [Reserved]
|
66
|
|
SECTION
2.06. Representations and Warranties of the
Depositor.
|
66
|
|
SECTION
2.07. Issuance of Certificates.
|
68
|
|
SECTION
2.08. Representations and Warranties of the Seller.
|
68
|
|
SECTION
2.09. Covenants of the Seller.
|
70
|
|
ARTICLE
III
ADMINISTRATION OF
THE MORTGAGE LOANS
|
70
|
|
SECTION
3.01. Servicing of the Mortgage Loans.
|
70
|
|
SECTION
3.02. REMIC-Related Covenants.
|
70
|
|
SECTION
3.03. Release of Mortgage Files.
|
71
|
|
SECTION
3.04.
REO Property.
|
72
|
|
SECTION
3.05. Reports Filed with Securities and Exchange
Commission.
|
72
|
|
SECTION
3.06. [Reserved]
|
74
|
|
SECTION
3.07. Indemnification by the Trustee.
|
74
|
|
ARTICLE
IV
ACCOUNTS
|
75
|
|
SECTION
4.01. Servicing Accounts
|
75
|
|
SECTION
4.02. Distribution Account.
|
76
|
|
SECTION
4.03. Permitted Withdrawals and Transfers from the Distribution
Account.
|
78
|
|
SECTION
4.04. [Reserved]
|
79
|
|
SECTION
4.05. Financial Guaranty Insurance Policy.
|
79
|
|
ARTICLE
V
FLOW OF FUNDS
|
81
|
|
SECTION
5.01.Distributions.
|
81
|
i
|
SECTION
5.02. Allocation of Net Deferred Interest.
|
87
|
|
SECTION
5.03. Allocation of Realized Losses.
|
88
|
|
SECTION
5.04. Statements.
|
89
|
|
SECTION
5.05. Remittance Reports;Advances.
|
92
|
|
SECTION
5.06. [Reserved]
|
93
|
|
SECTION
5.07. Basis Risk Reserve Fund.
|
93
|
|
SECTION
5.08. Recoveries.
|
94
|
|
SECTION
5.09. [Reserved]
|
95
|
|
ARTICLE
VI
THE CERTIFICATES
|
95
|
|
|
|
|
SECTION
6.01. The Certificates.
|
95
|
|
SECTION
6.02. Registration of Transfer and Exchange of
Certificates.
|
96
|
|
SECTION
6.03. Mutilated, Destroyed, Lost or Stolen
Certificates.
|
104
|
|
SECTION
6.04. Persons Deemed Owners.
|
105
|
|
ARTICLE
VII
DEFAULT
|
105
|
|
SECTION
7.01. Events of Default.
|
105
|
|
SECTION
7.02. Trustee
to Act.
|
106
|
|
SECTION
7.03. Waiver of Event of Default.
|
107
|
|
SECTION
7.04. Notification to Certificateholders.
|
107
|
|
|
|
|
ARTICLE
VIII
THE TRUSTEE
|
107
|
|
SECTION
8.01. Duties of the Trustee
|
107
|
|
SECTION
8.02. Certain Matters Affecting the Trustee
|
110
|
|
SECTION
8.03. Trustee Not Liable for Certificates or Mortgage
Loans.
|
111
|
|
SECTION
8.04. Trustee and Custodian May Own Certificates.
|
112
|
|
SECTION
8.05. Trustee’s Fees and Expenses.
|
112
|
|
SECTION
8.06. Eligibility Requirements for Trustee
|
112
|
|
SECTION
8.07. Resignation or Removal of Trustee
|
113
|
|
SECTION
8.08. Successor Trustee
|
114
|
|
SECTION
8.09. Merger or Consolidation of Trustee
|
114
|
|
SECTION
8.10. Appointment of Co-Trustee or Separate
Trustee.
|
114
|
|
SECTION
8.11. Limitation of Liability.
|
115
|
|
SECTION
8.12. Trustee May Enforce Claims Without Possession of
Certificates.
|
116
|
|
SECTION
8.13. Suits for Enforcement.
|
116
|
|
SECTION
8.14. Waiver of Bond Requirement.
|
116
|
|
SECTION
8.15. Waiver of Inventory, Accounting and Appraisal
Requirement.
|
117
|
|
SECTION
8.16. Appointment of Custodians.
|
117
|
|
SECTION
8.17. Indemnification
|
117
|
ii
|
|
|
|
ARTICLE
IX
REMIC ADMINISTRATION
|
118
|
|
SECTION
9.01. REMIC Administration.
|
118
|
|
SECTION
9.02. Prohibited Transactions and Activities.
|
121
|
|
|
|
|
ARTICLE
X
TERMINATION
|
121
|
|
SECTION
10.01.Termination.
|
121
|
|
SECTION
10.02. Additional Termination Requirements.
|
123
|
|
ARTICLE
XI
[RESERVED]
|
124
|
|
ARTICLE
XII
MISCELLANEOUS PROVISIONS
|
124
|
|
SECTION
12.01.
Amendment.
|
124
|
|
SECTION
12.02. Recordation of Agreement; Counterparts.
|
125
|
|
SECTION
12.03. Limitation on Rights of Certificateholders.
|
125
|
|
SECTION
12.04. Governing Law; Jurisdiction.
|
127
|
|
SECTION
12.05.
Notices.
|
127
|
|
SECTION
12.06. Severability of Provisions.
|
127
|
|
SECTION
12.07. Article and Section References.
|
128
|
|
SECTION
12.08. Notices to each Rating Agencies.
|
128
|
|
SECTION
12.09. Further Assurances.
|
129
|
|
SECTION
12.10. Benefits of Agreement.
|
129
|
|
SECTION
12.11. Acts of Certificateholders.
|
129
|
|
SECTION
12.12. Successors and Assigns.
|
130
|
|
SECTION
12.13. Provision of Information.
|
130
|
|
SECTION
12.14. Tax Treatment of Class X-1 Certificates.
|
130
|
|
EXHIBITS
AND SCHEDULES:
|
|
|
Exhibit
A-1 Form of Class A Certificate
|
X-0
|
|
Xxxxxxx
X-0 Form of Class X Certificate
|
X-0
|
|
Xxxxxxx
X-0 Form of Class PO Certificate
|
A-3
|
|
Exhibit
B Form of Residual Certificate
|
B-1
|
|
Exhibit
C Form of Subordinate Certificate
|
C-1
|
|
Exhibit
D [Reserved]
|
D-1
|
|
Exhibit
E Form of Reverse of the Certificates
|
E-1
|
|
Exhibit
F Request for Release
|
F-1
|
|
Exhibit
G-1 Form of Receipt of Mortgage Note
|
G-1-1
|
|
Exhibit
G-2 Form of Interim Certification of Trustee
|
G-2-1
|
|
Exhibit
G-3 Form of Final Certification of Trustee
|
G-3-1
|
|
Exhibit
H Form of Lost Note Affidavit
|
H-1
|
|
Exhibit
I-1 Form of ERISA Representation For Residual Certificates
|
I-1-1
|
|
Exhibit
I-2 Form of ERISA Representation For ERISA-Restricted
Certificates
|
I-2-1
|
|
Exhibit
J-1 Form of Investment Letter Non-Rule 144A
|
J-1-1
|
iii
|
Exhibit
J-2 Form of Rule 144A Investment Letter
|
J-2-1
|
|
Exhibit
K Form of Transferor Certificate
|
K-1
|
|
Exhibit
L Transfer Affidavit for Residual Certificate Pursuant to Section
6.02(e)
|
L-1
|
|
Exhibit
M List of Servicing Agreements
|
M-1
|
|
Exhibit
N-1 Form of Transfer Certificate (Restricted Global Security to Regulation
S Security)
|
N-1-1
|
|
Exhibit
N-2 Form of Transfer Certificate (Regulation S Security to Restricted
Global Security)
|
N-2-1
|
|
Exhibit
O Financial Guaranty Insurance Policy
|
O-1
|
|
Exhibit
P Form of Trustee Certification
|
P-1
|
|
Exhibit
Q [Reserved]
|
Q-1
|
|
Exhibit
R Form of Certification Regarding Servicing Criteria to be Addressed
in
Report on Assessment of Compliance
|
R-1
|
|
Exhibit
S Transaction Parties
|
S-1
|
|
Schedule
I Mortgage Loan Schedule
|
|
|
Schedule
II [Reserved]
|
iv
This
Pooling Agreement is dated as of January 1, 2006 (the “Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller
(the “Seller”)
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(the
“Trustee”).
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
HarborView Mortgage Loan Trust 2006-1 Mortgage Loan Pass-Through Certificates,
Series 2006-1 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust,
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 created hereunder. The Certificates will consist
of
twenty-three classes of certificates, designated as (i) the Class 1-A1A
Certificates, (ii) the Class 1-A1B Certificates, (iii) the Class 2-A1A
Certificates, (iv) the Class 2-A1B Certificates, (v) the Class 2-A1C
Certificates, (vi) the Class X-1 Certificates, (vii) the Class X-2A1B
Certificates, (viii) the Class PO-1 Certificates, (ix) the Class PO-2A1B
Certificates, (x) the Class A-R Certificates, (xi) the Class B-1 Certificates,
(xii) the Class B-2 Certificates, (xiii) the Class B-3 Certificates, (xiv)
the
Class B-4 Certificates, (xv) the Class B-5 Certificates, (xvi) the Class B-6
Certificates, (xvii) the Class B-7 Certificates, (xviii) the Class B-8
Certificates, (xix) the Class B-9 Certificates, (xx) the Class B-10
Certificates, (xxi) the Class B-11 Certificates, (xxii) the Class B-12
Certificates and (xxiii) the Class A-R-II Certificates.
As
provided herein, the Trustee shall elect that the Trust Fund (exclusive of
the
assets held in the Basis Risk Reserve Fund (the “Excluded
Trust Property”))
be
treated for federal income tax purposes as comprising three real estate mortgage
investment conduits (each, a “REMIC”
or,
in
the alternative, the “Lower-Tier
REMIC,”
the
“Middle-Tier
REMIC”
and
the
“Upper-Tier
REMIC”).
Each
Certificate, other than the Class A-R and Class A-R-II Certificates, shall
represent ownership of a regular interest in the Upper-Tier REMIC, as described
herein. In addition, the MTA and LIBOR Certificates represent the right to
receive payments in respect of Basis Risk Shortfalls from the Basis Risk Reserve
Fund as provided in Section 5.07. The owners of the Class X-1 and Class X-2A1B
Certificates beneficially own the Basis Risk Reserve Fund. The Class A-R-II
Certificate represents ownership of the sole class of residual interest in
the
Lower-Tier REMIC, and the Class A-R Certificates represent ownership of the
sole
class of residual interest in the Middle-Tier and the Upper-Tier
REMICs.
The
Lower-Tier REMIC shall hold as assets all property of the Trust Fund, other
than
the Excluded Trust Property and the Lower-Tier REMIC Interests and the
Middle-Tier REMIC Interests. The Middle-Tier REMIC shall hold as assets the
uncertificated Lower-Tier Interests, other than the Class LT-R Interest. Each
such Lower-Tier Interest is hereby designated as a REMIC regular interest.
The
Upper-Tier REMIC shall hold as assets the uncertificated Middle-Tier Interests,
other than the Class MT-R Interest. Each such Middle-Tier Interest is hereby
designated as a REMIC regular interest.
1
Lower-Tier
REMIC Interests
The
following table specifies the Class designation, interest rate, and initial
principal amount for each Lower-Tier REMIC Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Related
group
|
|||||||
|
LT-Group
1
|
(1
|
)
|
$
|
581,362,714.40
|
Group
1
|
|||||
|
LT-Group
1 SCA
|
(1
|
)
|
$
|
611,066.81
|
Group
1
|
|||||
|
LT-Group
2
|
(2
|
)
|
$
|
1,160,620,209.29
|
Group
2
|
|||||
|
LT-Group
2 SCA
|
(2
|
)
|
$
|
1,219,940.50
|
Group
2
|
|||||
|
LT-R
|
(3
|
)
|
(3
|
)
|
N/A
|
|||||
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Interests is a per annum
rate
equal to the Group 1 Net WAC for such Distribution Date.
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Interests is a per annum
rate
equal to the Group 2 Net WAC for such Distribution Date.
|
|
(3)
|
The
LT-R Interest is the sole class of residual interests in the Lower-Tier
REMIC. It does not have an interest rate or a principal balance.
Ownership
of the LT-R Interest is represented by the Class A-R-II
Certificate.
|
On
each
Distribution Date, Available Funds for both Loan Groups shall be allocated
among
the Lower-Tier Interests in the following order of priority:
|
(i)
|
First,
concurrently to the LT-Group 1 SCA and LT-Group 2 SCA Interests as
follows:
|
|
(a)
|
to
the LT-Group 1 SCA Interest until its principal balance equals one
percent
of the Subordinate Component for Loan Group 1 for the immediately
succeeding Distribution Date;
|
|
(b)
|
to
the LT-Group 2 SCA Interest until its principal balance equals one
percent
of the Subordinate Component for Loan Group 2 for the immediately
succeeding Distribution Date; and
|
|
(c)
|
to
the LT-Group 1 SCA and the LT-Group 2 SCA Interests the amount necessary
to cause the ratio of the principal balance of each such Lower-Tier
Interest to the principal balances of the other such Lower-Tier Interest
to equal the ratio of the Subordinate Component for the Loan Group
related
to such Lower-Tier Interest to the Subordinate Component related
to the
other Loan Group for the immediately succeeding Distribution
Date;
|
|
(ii)
|
Second,
concurrently to the LT-Group 1 and LT-Group 2 Interests until
-
|
2
|
(a)
|
the
principal balance of the LT-Group 1 Interest equals the excess of
(I) the
Pool Collateral Balance for Loan Group 1 for the immediately succeeding
Distribution Date, over (II) the principal balance of the LT-Group
1 SCA
Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date,
and
|
|
(b)
|
the
principal balance of the LT-Group 2 Interest equals the excess of
(I) the
Pool Collateral Balance for Loan Group 2 as of for the immediately
succeeding Distribution Date, over (II) the principal balance of
the
LT-Group 2 SCA Interest for such Distribution Date, after taking
into
account distributions pursuant to priority (i) above for such Distribution
Date,
|
|
(iii)
|
Third,
to make interest distributions on the Lower-Tier Interests at the
interest
rates described above, provided,
however,
that any Net Deferred Interest shall be allocated among and increase
the
principal balances of the Lower-Tier Interests in the same order
and
priority in which principal is distributed pursuant to priorities
(i) and
(ii) above.
|
|
(iv)
|
Finally,
any remaining amounts to the LT-R
Interest.
|
On
any
Distribution Date, after all distributions of Available Funds, Realized Losses
shall be allocated among the Lower-Tier Interests in the same order of priority
in which principal is distributed among such Lower-Tier Interests pursuant
to
priorities (i) and (ii) above.
Middle-Tier
REMIC Interests
|
Designation
|
Interest
Rate
|
Initial
Principal Balance
|
Corresponding
Class of Certificates
|
|||||||
|
MT1-A1A
|
(1
|
)
|
$
|
156,259,100.00
|
Class
1-A1A
|
|||||
|
MY1-A1B
|
(1
|
)
|
$
|
104,172,000.00
|
Class
1-A1B
|
|||||
|
MT2-A1A
|
(2
|
)
|
$
|
311,954,500.00
|
Class
2-A1A
|
|||||
|
MT2-A1B
|
(2
|
)
|
$
|
129,980,500.00
|
Class
2-A1B
|
|||||
|
MT2-QA1B
|
(2
|
)
|
$
|
124,781,380.00
|
N/A
|
|||||
|
MT2-ZAIB
|
(2
|
)
|
$
|
2,599,610.00
|
N/A
|
|||||
|
MT2-YA2B
|
(2
|
)
|
$
|
2,599,610.00
|
N/A
|
|||||
|
MT2-A1C
|
(2
|
)
|
$
|
77,988,000.00
|
Class
2-A1C
|
|||||
|
MTB-1
|
(3
|
)
|
$
|
17,439,000.00
|
Class
B-1
|
|||||
|
MTB-2
|
(3
|
)
|
$
|
12,206,500.00
|
Class
B-2
|
|||||
|
MTB-3
|
(3
|
)
|
$
|
7,411,000.00
|
Class
B-3
|
|||||
|
MTB-4
|
(3
|
)
|
$
|
6,975,000.00
|
Class
B-4
|
|||||
|
MTB-5
|
(3
|
)
|
$
|
6,103,500.00
|
Class
B-5
|
|||||
|
MTB-6
|
(3
|
)
|
$
|
5,667,500.00
|
Class
B-6
|
|||||
|
MTB-7
|
(3
|
)
|
$
|
4,795,500.00
|
Class
B-7
|
|||||
|
MTB-8
|
(3
|
)
|
$
|
4,359,500.00
|
Class
B-8
|
|||||
|
MTB-9
|
(3
|
)
|
$
|
3,923,500.00
|
Class
X-0
|
|||||
|
XXX-00
|
(3
|
)
|
$
|
6,975,000.00
|
Class
X-00
|
|||||
|
XXX-00
|
(3
|
)
|
$
|
8,719,000.00
|
Class
X-00
|
|||||
|
XXX-00
|
(3
|
)
|
$
|
6,975,365.50
|
Class
B-12
|
|||||
|
MT1-Q
|
(1
|
)
|
$
|
250,018,760.00
|
N/A
|
|||||
|
MT1-Z
|
(1
|
)
|
$
|
5,208,620.00
|
N/A
|
|||||
|
MT1-Y
|
(1
|
)
|
$
|
5,208,620.00
|
N/A
|
|||||
|
MT2-Q
|
(2
|
)
|
$
|
374,344,800.00
|
N/A
|
|||||
|
MT2-Z
|
(2
|
)
|
$
|
7,798,850.00
|
N/A
|
|||||
|
MT2-Y
|
(2
|
)
|
$
|
7,798,850.00
|
N/A
|
|||||
|
MTB-Q
|
(3
|
)
|
$
|
87,888,670.56
|
N/A
|
|||||
|
MTB-Z
|
(3
|
)
|
$
|
1,831,013.97
|
N/A
|
|||||
|
MTB-Y
|
(3
|
)
|
$
|
1,831,013.97
|
N/A
|
|||||
|
MT-R
|
(4
|
)
|
(4
|
)
|
Class
A-R
|
|||||
3
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
1
and LT-Group 1 SCA Interests for such Distribution Date (the Group
1 Net
WAC).
|
|
(2)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
2
and LT-Group 2 SCA Interests for such Distribution Date (the Group
2 Net
WAC).
|
|
(3)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
1
SCA and LT-Group 2 SCA Interests for such Distribution Date (the
“Subordinate Net WAC).
|
|
(4)
|
The
MT-R Interest is the sole class of residual interests in the Middle-Tier
REMIC. It does not have an interest rate or a principal balance.
Ownership
of the MT-R Interest is represented by the Class A-R
Certificates.
|
On
each
Distribution Date, Available Funds, which shall have been distributed in respect
of the Lower-Tier Interests in the Lower-Tier REMIC, shall be allocated among
the Middle-Tier Interests in the following order of priority:
|
(i)
|
First,
to the XX0-XX0X, XX0-XX0X, XX0-X, XX0-X, XX0-X, MT2-Y, MTB-Z, and
MTB-Y
Interests in reduction of their principal balances as follows -
|
|
(a)
|
Concurrently
to the XX0-XX0X, XX0-X, XX0-X, and MTB-Z Interests the amount, if
any,
required to reduce (I) the principal balance of the MT2-ZA1B Interest
to
the MT2-ZA1B Target Balance for such Distribution Date, (II) the
principal
balance of the MT1-Z Interest to the MT1-Z Target Balance for such
Distribution Date, (III) the principal balance of the MT2-Z Interest
to
the MT2-Z Target Balance for such Distribution Date, and (IV) the
principal balance of the MTB-Z Interest to the MTB-Z Target Balance
for
such Distribution Date;
|
4
|
(b)
|
Concurrently
to the XX0-XX0X, XX0-X, XX0-X, and MTB-Y Interests the amount, if
any,
required to reduce (I) the principal balance of the MT2-YA1B Interest
to
the MT2-YA1B Target Balance for such Distribution Date, (II) the
principal
balance of the MT1-Y Interest to the MT1-Y Target Balance for such
Distribution Date, (III) the principal balance of the MT2-Y Interest
to
the MT2-Y Target Balance for such Distribution Date, and (IV) the
principal balance of the MTB-Y Interest to the MTB-Y Target Balance
for
such Distribution Date; and
|
|
(c)
|
Concurrently
to the MT2-ZA1B, MT2-YA1B, MT1-Z, MT1-Y, MT2-Z, MT2-Y, MTB-Z, and
MTB-Y
Interests as follows: (I) to the MT2-ZA1b and MT2-YA1b Interests,
in
proportion to their principal balances, after taking into account
distributions pursuant to priorities (a) and (b) above, until the
sum of
their principal balances equals 2% of the aggregate Class Principal
Balance of the Class 2-A1B Certificates immediately after such
Distribution Date, (II) to the MT1-Z and MT1-Y Interests, in proportion
to
their principal balances, after taking into account distributions
pursuant
to priorities (a) and (b) above, until the sum of their principal
balances
equals 2% of the aggregate Class Principal Balance of the Class
1-A1A and
Class 1-A1B Certificates immediately after such Distribution Date,
(III)
to the MT2-Z and MT2-Y Interests, in proportion to their principal
balances, after taking into account distributions pursuant to priorities
(a) and (b) above, until the sum of their principal balances equals
2% of
the aggregate Class Principal Balance of the Class 2-A1A and Class
2-A1C
Certificates immediately after such Distribution Date, (IV) to
the MTB-Z
and MTB-Y Interests, in proportion to their principal balances,
after
taking into account distributions pursuant to priorities (a) and
(b)
above, until the sum of their principal balances equals 2% of the
aggregate Class Principal Balance of the Class B1, Class B2, Class
B3,
Class B4, Class B5, Class B6, Class B7, Class B-8, Class B-9, Class
B-10,
Class B-11, and Class B-12 Certificates immediately after such
Distribution Date,
|
|
(ii)
|
Second,
concurrently to the XX-X0X, XX-X0X, XX-0X0X, XX-0X0X, XX-0X0X,
MT-B1,
MT-B2, MT-B3. MT-B4, MT-B5, MT-B6, MT-B7, MT-B8, MT-B9, MT-B10,
MT-B11,
and MT-B12 Interests until the principal balance of each such Lower-Tier
Interest equals 50% of the Class Principal Balance or Balances
of the
Corresponding Class or Classes of Certificates for such Middle-Tier
Interest immediately after such Distribution
Date;
|
5
|
(iii)
|
Third,
concurrently to the XX0-XX0X, XX0-X, XX0-X, and MTB-Q Interests
until (a)
the principal balance of the MT2-QA1B Interest equals the excess
of (I)
the aggregate Class Principal Balance of the Class 2-A1B and Class
PO-2
Certificates immediately after such Distribution Date over (II)
the
aggregate of the principal balances of the XX0-X0X, XX0-XX0X, and
MT2-YA1B
Interests after taking into account the distributions made pursuant
to
priorities (i) and (ii) above on such Distribution Date, (b) the
principal
balance of the MT1-Q Interest equals the excess of (I) the aggregate
Class
Principal Balance of the Class 1-A1A, Class 1-A1B, Class A-R, and
Class
PO-1 Certificates immediately after such Distribution Date over
(II) the
aggregate of the principal balances of the XX0-X0X, XX0-X0X, XX0-X,
and
MT1-Y Interests after taking into account the distributions made
pursuant
to priorities (i) and (ii) above on such Distribution Date, (c)
the
principal balance of the MT2-Q Interest equals the excess of (I)
the
aggregate Class Principal Balance of the Class 2-A1A and Class
2-A1C
Certificates immediately after such Distribution Date over (II)
the
aggregate of the principal balances of the XX0-X0X, XX0-X0X, MT2-Z,
and
MT2-Y Interests after taking into account the distributions made
pursuant
to priorities (i) and (ii) above on such Distribution Date, and
(d) the
principal balance of the MTB-Q Interest equals the excess of (I)
the
aggregate Class Principal Balance of the Class B1, Class B2, Class
B3,
Class B4, Class B5, Class B6, Class B7, Class B-8, Class B-9, Class
B-10,
Class B-11, and Class B-12 Certificates immediately after such
Distribution Date over (b) the aggregate of the principal balances
of the
MT-B1, MT-B2, MT-B3, MT-B4, MT-B5, MT-B6, MT-B7, MT-B8, MT-B9,
MT-B10,
MT-B11, MT-B12, MTB-Z, and MTB-Y Interests after taking into account
the
distributions made pursuant to priorities (i) and (ii) above on
such
Distribution Date;
|
|
(iv)
|
Fourth,
remaining Available Funds shall be applied to interest distributions
on
the Middle-Tier Interests in the Middle-Tier REMIC at the interest
rates
described above, provided,
however,
that any Net Deferred Interest will be allocated among and increase
the
principal balances of the Middle-Tier Interests in the same order
of
priority in which principal is distributed among such Middle-Tier
Interests pursuant to priorities (i)(c), (ii), and (iii)
above.
|
On
any
Distribution Date, after all distributions of Available Funds, which shall
have
been distributed or allocated in respect of the Lower-Tier Interests in the
Lower-Tier REMIC, Realized Losses shall be allocated among the Middle-Tier
Interests in the same order of priority in which principal is distributed among
such Middle-Tier Interests pursuant to priorities (i) through (iii)
above.
The
Certificates
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, and Original Class Principal Balance (or Original Class Notional Balance)
for each Class of Certificates comprising interests in the Trust Fund created
hereunder. Each Class of Certificates, other than the Class A-R and Class A-R-II
Certificates, is hereby designated as representing ownership of regular
interests in the Upper-Tier REMIC.
6
|
Original
Class Principal
Balance
or Class Notional Balance
|
Pass-Through
Rate
|
||||||
|
Class
1-A1A
|
$
|
312,518,000.00
|
(1
|
)
|
|||
|
Class
1-A1B
|
$
|
208,344,000.00
|
(1
|
)
|
|||
|
Class
2-A1A
|
$
|
623,909,000.00
|
(1
|
)
|
|||
|
Class
2-A1B
|
$
|
259,961,000.00
|
(1
|
)
|
|||
|
Class
2-A1C
|
$
|
155,976,000.00
|
(1
|
)
|
|||
|
Class
X-1
|
Notional
Amount (2
|
)
|
(1
|
)
|
|||
|
Class
X-2A1B
|
Notional
Amount (3
|
)
|
(1
|
)
|
|||
|
Class
PO-1
|
$
|
5,000.00
(4
|
)
|
(6
|
)
|
||
|
Class
PO-2A1B
|
$
|
100.00
(5
|
)
|
(6
|
)
|
||
|
Class
A-R
|
$
|
100.00
(10
|
)
|
(7
|
)
|
||
|
Class
B-1
|
$
|
34,878,000.00
|
(8
|
)
|
|||
|
Class
B-2
|
$
|
24,413,000.00
|
(8
|
)
|
|||
|
Class
B-3
|
$
|
14,822,000.00
|
(8
|
)
|
|||
|
Class
B-4
|
$
|
13,950,000.00
|
(8
|
)
|
|||
|
Class
B-5
|
$
|
12,207,000.00
|
(8
|
)
|
|||
|
Class
B-6
|
$
|
11,335,000.00
|
(8
|
)
|
|||
|
Class
B-7
|
$
|
9,591,000.00
|
(8
|
)
|
|||
|
Class
B-8
|
$
|
8,719,000.00
|
(8
|
)
|
|||
|
Class
B-9
|
$
|
7,847,000.00
|
(8
|
)
|
|||
|
Class
B-10
|
$
|
13,950,000.00
|
(8
|
)
|
|||
|
Class
B-11
|
$
|
17,438,000.00
|
(8
|
)
|
|||
|
Class
B-12
|
$
|
13,950,730.00
|
(8
|
)
|
|||
|
Class
A-R-II
|
(9
|
)
|
(9
|
)
|
|||
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(2)
|
For
purposes of the REMIC provisions, the Class X-1 Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the XX0-X0X, XX0-X0X, XX0-X0X, XX0-X0X, XXX-0, XXX-0, XXX-0, XXX-0,
XXX-0, XXX-0. XXX-0, XXX-0, XXX-0, XXX-00, XXX-00, MTB-12, MT1-Q,
MT1-Y,
MT1-Z, MT2-Q, XX0-X, XX0-X, MTB-Q, MTB-Y, and MTB-Z Interests. For
purposes of the REMIC Provisions, interest shall accrue on the Class
X-1
Certificate at a rate equal to the excess, if any, of (i) the weighted
average of the Group 1 Adjusted Net WAC and the Group 2 Adjusted
Net WAC,
weighted on the basis of the applicable Pool Balances for such
Distribution Date, over (ii) the Adjusted Middle-Tier WAC. The Class
X-1
Certificates are interest-only certificates and will not be entitled
to
distributions of principal.
|
|
(3)
|
For
purposes of the REMIC provisions, the Class X-2A1B Certificates shall
accrue interest on a notional balance equal to the sum of the principal
balances of the XX0-X0X, XX0-XXXX, MT2-YAIB, and MT2-ZAIB Interests.
For
purposes of the REMIC Provisions, interest shall accrue on the Class
X-2A1B Certificate at a rate equal to the excess, if any, of (i)
the Group
2-A1B Adjusted Net WAC over (ii) the Group 2-A1B Adjusted Middle-Tier
WAC.
|
7
|
(4)
|
The
Class PO-1 Certificates will be deemed for purposes of the distribution
of
principal to consist of two components: the PO-1A1 Component and
the
PO-1A2 Component. The Components are not severable. For purposes
of the
REMIC Provisions, the Class PO-1 Certificates shall accrue interest
on a
notional balance equal to the sum of the principal balances of the
XX0-X0X, XX0-X0X, XX0-X0X, XX0-X0X, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0,
XXX-0. XXX-0, XXX-0, XXX-0, XXX-00, XXX-00, MTB-12, MT1-Q, MT1-Y,
MT1-Z,
MT2-Q, XX0-X, XX0-X, MTB-Q, MTB-Y, and MTB-Z Interests. For purposes
of
the REMIC Provisions, interest shall accrue on the Class PO-1 Certificates
at a rate equal to the excess of (i) the weighted average of the
Group 1
Net WAC and the Group 2 Net WAC, weighted on the basis of the applicable
Pool Balances for such Distribution Date, over (ii) the Adjusted
Middle-Tier Pay Rate. Any interest accrued on the Class PO-1 Certificates
will not be paid currently but shall increase the Component Principal
Balance of the Class PO-1 Certificate. All amounts so accrued shall
be
deferred and distributed as principal in respect of the PO-1A1 and
PO-1A2
Components.
|
|
(5)
|
The
Class PO-2A1B Certificates are principal-only certificates and will
not be
entitled to distributions of interest. For purposes of the REMIC
Provisions, the Class PO-2A1B Certificates shall accrue interest
on a
notional balance equal to the sum of the principal balances of the
XX0-X0X, XX0-XXXX, MT2-YAIB, and MT2-ZAIB Interests. For purposes
of the
REMIC Provisions, interest shall accrue on the Class PO-2A1B Certificates
at a rate equal to the excess of (i) the Group 2 Net WAC over (ii)
the Group 2-A1B Adjusted Middle-Tier Pay Rate. Any interest accrued
on the Class PO-2A1B Certificates will not be paid currently but
shall
increase the Component Principal Balance of the Class PO-2A1B
Certificate.
|
|
(6)
|
The
Class PO-1 and Class PO-2A1B Certificates are principal-only certificates
and will not be entitled to distributions of
interest.
|
|
(7)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(8)
|
Calculated
pursuant to the definition of “Pass-Through Rate,” but adjusted, for
purposes of the REMIC Provisions, to reflect the allocation, if any,
of
Subordinate Class Expense Share.
|
|
(9)
|
For
purposes of the REMIC provisions, the Class A-R-II Certificate represents
ownership of the Class LT-R Interest, which is the sole class of
residual
interest in the Lower-Tier REMIC and does not have a principal balance
or
a pass-through rate.
|
|
(10)
|
For
purposes of the REMIC provisions, the Class A-R Certificate represents
ownership of (i) the Class MT-R Interest, which is the sole residual
interest in the Middle-Tier REMIC and (ii) the sole class of residual
interest in the Upper-Tier REMIC.
|
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, in the case of the MTA Certificates, the Interest-Only Certificates
and
the Class A-R Certificates, and each of the Lower-Tier Interests and Middle-Tier
Interests, on the basis of an assumed 360-day year consisting of twelve 30-day
months, and in the case of LIBOR Certificates, on the basis of an assumed
360-day year and the actual number of days elapsed in the Accrual
Period.
8
“Acceptable
Successor Servicer”:
A
FHLMC- or FNMA-approved servicer that is (i) reasonably acceptable to the
Trustee and (ii) acceptable to each Rating Agency, as evidenced by a letter
from
each such Rating Agency delivered to the Trustee that such entity’s acting as a
successor servicer will not result in a qualification, withdrawal or downgrade
of the then-current rating of any of the Certificates (without regard to the
Financial Guaranty Insurance Policy).
“Account”:
The
Distribution Account or each Servicing Account, as the context
requires.
“Accrual
Period”:
With
respect to each Distribution Date and the MTA Certificates, the Interest-Only
Certificates and Class A-R Certificates, and any Lower-Tier Interests and
Middle-Tier Interests, the calendar month immediately preceding the month of
that Distribution Date. With respect to each Distribution Date and the LIBOR
Certificates, the period beginning on the immediately preceding Distribution
Date (or Closing Date in the case of the first Distribution Date) and ending
on
the date immediately preceding such Distribution Date. Interest on the LIBOR
Certificates shall be calculated on the basis of a 360-day year and the actual
number of days elapsed in the related Accrual Period; in the case of the other
Classes of Certificates (and the Pooling REMIC Interests, Lower-Tier Interests
and Middle-Tier Interests), interest shall be calculated based on an assumption
that each month has 30 days and each year has 360 days.
“Accrued
Interest Amount”:
With
respect to any Distribution Date and any Undercollateralized Group, an amount
equal to one month’s interest on the applicable Principal Deficiency Amount at
the Net WAC of the applicable Loan Group, plus any interest accrued on the
Senior Certificates of such Undercollateralized Group remaining unpaid from
prior Distribution Dates.
“Adjusted
Cap Rate”:
Any of
the Group 1 Adjusted Cap Rate, the Group 2 Adjusted Cap Rate, the Class X-1
Adjusted Cap Rate, the Class X-2A1B Adjusted Cap Rate or the Subordinate
Adjusted Cap Rate, as applicable.
“Adjusted
Middle-Tier Pay Rate”:
For
any Distribution Date (and the related Accrual Period), the product of (i)
2
multiplied
by
(ii) the
weighted average of the interest rates on the XX0-X0X, XX0-X0X, XX0-X0X,
XX0-X0X, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0. XXX-0, XXX-0, XXX-0, XXX-00,
XXX-00, MTB-12, MT1-Q, MT1-Y, MT1-Z, MT2-Q, XX0-X, XX0-X, MTB-Q, MTB-Y, and
MTB-Z 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 (a)
first subjecting the interest rate on the MT1-Q, MT1-Y, MT1-Z, MT2-Q, XX0-X,
XX0-X, MTB-Q, MTB-Y, and MTB-Z Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on the XX0-X0X, XX0-X0X, XX0-X0X, XX0-X0X, XXX-0,
XXX-0, XXX-0, XXX-0, XXX-0, XXX-0. XXX-0, XXX-0, XXX-0, XXX-00, XXX-00, and
MTB-12 Interests to a cap equal to the product of the Pass-Through Rate for
the
Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and a floor equal to the weighted average of the Group 1 Adjusted Net WAC and
the Group 2 Adjusted Net WAC, weighted on the basis of the applicable Pool
Balances for such Distribution Date.
9
“Adjusted
Middle-Tier WAC”:
For
any Distribution Date (and the related Accrual Period), the product of (i)
2
multiplied
by
(ii) the
weighted average of the interest rates on the XX0-X0X, XX0-X0X, XX0-X0X,
XX0-X0X, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0. XXX-0, XXX-0, XXX-0, XXX-00,
XXX-00, MTB-12, MT1-Q, MT1-Y, MT1-Z, MT2-Q, XX0-X, XX0-X, MTB-Q, MTB-Y, and
MTB-Z 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 (a)
first subjecting the interest rate on each of the MT1-Q, MT1-Y, MT1-Z, MT2-Q,
XX0-X, XX0-X, MTB-Q, MTB-Y, and MTB-Z Interests to a cap of 0.00%, and (b)
first
subjecting the interest rate on each of the XX0-X0X, XX0-X0X, XX0-X0X, XX0-X0X,
XXX-0, XXX-0, XXX-0, XXX-0, XXX-0, XXX-0. XXX-0, XXX-0, XXX-0, XXX-00, XXX-00,
and MTB-12 Interests to a cap equal to the lesser of (I) the Pass-Through Rate
for the Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and (II) the weighted average of the Group 1 Adjusted Net WAC and the Group
2
Adjusted Net WAC, weighted on the basis of the applicable Pool Balances for
such
Distribution Date.
“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 applicable Cut-off Date as to each Mortgage Loan is set forth
in
the Mortgage Loan Schedule.
“Advance”:
With
respect to any Distribution Date and any Mortgage Loan or REO Property, any
advance made by the Servicer pursuant to Section 7.02.
“Adverse
REMIC Event”:
Either
(i) 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) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Premium Amount”:
As to
any Distribution Date and the Insured Certificates, the product of one-twelfth
of the Premium Rate and the aggregate Class Principal Balance of the Class
1-A1B
and Class 2-A1C Certificates on the immediately preceding Distribution Date,
or,
in the case of the first Distribution Date, the Closing Date, in each case
after
giving effect to distributions of principal made on such Distribution
Date.
“Aggregate
Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction the numerator
of
which is the aggregate of the Class Principal Balances of the Classes of
Subordinate Certificates and the denominator of which is the Pool Balance for
such Distribution Date.
10
“Agreement”:
This
Pooling Agreement, dated as of January 1, 2006, as amended, supplemented and
otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(d).
“Apportioned
Principal Balance”:
As to
any Class of Subordinate Certificates, Loan Group and any Distribution Date,
the
Class Principal Balance of such Class immediately prior to such Distribution
Date multiplied
by
a
fraction, the numerator of which is the Subordinate Component for the related
Loan Group for such date and the denominator of which is the sum of the related
Subordinate Components (in the aggregate).
“Assignment”:
As 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”:
As to
any Distribution Date and either Loan Group, an amount equal to (i) the sum
of (a) the aggregate of the Monthly Payments received on or prior to the
related Determination Date (excluding Monthly Payments due in future Due Periods
but received by the related Determination Date) in respect of the Mortgage
Loans
in that Loan Group, (b) Net Liquidation Proceeds, Insurance Proceeds,
Principal Prepayments, Recoveries and other unscheduled recoveries of principal
and interest in respect of the Mortgage Loans in that Loan Group received during
the related Prepayment Period, (c) the aggregate of any amounts received in
respect of REO Properties for such Distribution Date in respect of the Mortgage
Loans in that Loan Group, (d) the aggregate of any amounts of Interest
Shortfalls (excluding for such purpose all shortfalls as a result of Relief
Act
Reductions) paid by the Servicer pursuant to the Servicing Agreement and
Compensating Interest Payments deposited in the Distribution Account for that
Distribution Date in respect of the Mortgage Loans in that Loan Group,
(e) the aggregate of the Purchase Prices and Substitution Adjustments
deposited in the Distribution Account during the related Prepayment Period
in
respect of the Mortgage Loans in that Loan Group, (f) the aggregate of any
advances in respect of delinquent Monthly Payments made by the Servicer for
that
Distribution Date in respect of the Mortgage Loans in that Loan Group,
(g) the aggregate of any Advances made by the Trustee for that Distribution
Date pursuant to Section 7.02 hereof in respect of the Mortgage Loans in that
Loan Group and (h) the Termination Price allocated to such Loan Group on
the Distribution Date on which the Trust is terminated; minus
the sum
of (u) the related Premium Amount payable on such Distribution Date to the
Certificate Insurer from such Loan Group, (v) the Expense Fees for that
Distribution Date in respect of the Mortgage Loans in that Loan Group, (w)
amounts in reimbursement for Advances previously made in respect of the Mortgage
Loans in that Loan Group and other amounts as to which the Servicer, the Trustee
and the Custodian are entitled to be reimbursed pursuant to Section 4.03, (x)
the amount payable to the Trustee, pursuant to Section 8.05 and the Custodian
pursuant to Section 19 of the BONY Custodial Agreement in respect of the
Mortgage Loans in that Loan Group or if not related to a Mortgage Loan,
allocated to each Loan Group on a pro
rata
basis,
(y) amounts deposited in the Distribution Account in error in respect of the
Mortgage Loans in that Loan Group.
11
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Reserve Fund”:
A fund
created as part of the Trust Fund pursuant to Section 5.07 of this Agreement
but
which is not an asset of any of the REMICs.
“Basis
Risk Reserve Fund X-1 Subaccount”:
A fund
created as part of the Trust Fund on behalf of the Class X-1 Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Basis
Risk Reserve Fund X-2A1B Subaccount”:
A fund
created as part of the Trust Fund on behalf of the Class X-2A1B Certificates
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 MTA and LIBOR Certificates, the “Basis
Risk Shortfall” for such class, if any, will equal 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;
(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.
“BONY
Custodial Agreement”:
The
Custodial Agreement dated as of January 1, 2006, between the Trustee and the
Bank of New York, as custodian.
“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.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, Minnesota, Texas, New York or
Massachusetts or in the city in which the Corporate Trust Office of the Trustee
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 pursuant to the second paragraph
of Section 10.01(a) hereof.
12
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate or Residual Certificate.
“Certificate
Insurer”:
Financial Security Assurance Inc., a New York financial guaranty insurance
company.
“Certificate
Insurer Default”:
The
existence and continuance of any of the following: (a) a failure by the
Certificate Insurer to make a payment required under the Financial Guaranty
Insurance Policy in accordance with its terms (unless such failure was due
to
the failure of the Trustee to provide a correct and timely notice of claim);
(b)
the entry of a final and non-appealable decree or order of a court or agency
having jurisdiction in respect of the Certificate Insurer in an involuntary
case
under any present or future federal or state bankruptcy, insolvency or similar
law appointing a conservator or receiver or liquidator or other similar official
of the Certificate Insurer or of any substantial part of its property, or the
entering of a final and non-appealable order for the winding up or liquidation
of the affairs of the Certificate Insurer; (c) the Certificate Insurer shall
consent to the appointment of a conservator or receiver or liquidator or other
similar official in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to the Certificate Insurer
or of or relating to all or substantially all of its property; or (d) the
Certificate Insurer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar statute, make an assignment for
the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
“Certificate
Insurer Reimbursement Amount”:
For
any Distribution Date, the sum of (a) all amounts previously paid by the
Certificate Insurer in respect of Insured Amounts for which the Certificate
Insurer has not been reimbursed prior to such Distribution Date and (b) interest
accrued on the foregoing at the Late Payment Rate from the date the Trustee
received such amounts paid by the Certificate Insurer to such Distribution
Date.
“Certificate
Notional Balance”:
With
respect to each Certificate of a particular Class of Interest-Only Certificates
and any date of determination, the product of (i) the Class Notional Balance
of
such Class and (ii) the applicable Percentage Interest of such
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a particular Class (other than any Class of
Interest-Only Certificates and Class A-R-II) 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.
U.S. Bank National Association will act as Certificate Registrar, for so long
as
it is the Trustee under this Agreement.
13
“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 a Residual Certificate for any purpose hereof.
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
1-A1B Premium Amount”:
With
respect to any Distribution Date and the Class 1-A1B Certificates, the product
of one-twelfth of the Premium Rate and the Class Principal Balance of the Class
1-A1B Certificates on the immediately preceding Distribution Date, or, in the
case of the first Distribution Date, on the Closing Date, in each case after
giving effect to distributions of principal made on such Distribution
Date.
“Class
2-A1C Premium Amount”:
With
respect to any Distribution Date and the Class 2-A1C Certificates, the product
of one-twelfth of the Premium Rate and the Class Principal Balance of the Class
2-A1C Certificates on the immediately preceding Distribution Date, or, in the
case of the first Distribution Date, on the Closing Date, in each case after
giving effect to distributions of principal made on such Distribution
Date.
“Class
Notional Balance”:
With
respect to any Class of Interest-Only Certificates and any Distribution Date,
the Class X-1 Notional Balance or the Class X-2A1B Notional Balance, as
applicable.
“Class
Principal Balance”:
With
respect to any Class of Certificates (other than the Interest-Only Certificates,
Class PO-B and Class A-R-II Certificates) and any Distribution Date, the
Original Class Principal Balance as reduced by the sum of (x) all amounts
actually distributed in respect of principal of that Class on all prior
Distribution Dates (provided, however, that the Certificate Insurer will be
subrogated to the amount of any Realized Losses paid by it to the Insured
Certificates), (y) all Realized Losses, if any, actually allocated to that
Class
on all prior Distribution Dates and (z) in the case of the Subordinate
Certificates, any applicable Writedown Amount; provided,
however,
that
(i) pursuant to Section 5.02, the Class Principal Balance of a Class of
Certificates shall be increased up to the amount of Net Deferred Interest
allocated to such Class of Certificates on such Distribution Date and (ii)
pursuant to Section 5.08, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated to
such Class, in the event that there is a Recovery on a related Mortgage Loan,
and the Certificate Principal Balance of any individual Certificate of such
Class will be increased by its pro
rata
share of
the increase to such Class. With respect to the Class PO-1 Certificates, the
sum
of the Component Principal Balances of the Principal-Only Components as (a)
reduced by the sum of (x) all amounts actually distributed in respect of
principal of such Components on all prior Distribution Dates and (y) all
Realized Losses, if any, actually allocated to such Components on all prior
Distribution Dates; provided,
however,
that
(i) pursuant to Section 5.02, the Component Principal Balance of the PO-1A1
Component shall be increased up to the amount of Net Deferred Interest allocated
to the Class X-1 Certificates from Loan Group 1 and the Component Principal
Balance of the PO-1A2 Component shall be increased up to the amount of Net
Deferred Interest allocated to the Class X-1 Certificates from Loan Group 2,
in
each case based on the related Mortgage Loans on such Distribution Date and
(ii)
pursuant to Section 5.08, the Component Principal Balance of a Component may
be
increased up to the amount of Realized Losses previously allocated to such
Component, in the event that there is a Recovery on a related Mortgage
Loan.
14
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
PO Certificate”:
Any
Class PO-1 or Class PO-2A1B Certificate.
“Class
Subordination Percentage”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of such Class immediately before such Distribution Date and
the denominator of which is the aggregate of the Class Principal Balances of
all
Classes of Certificates and Component Principal Balances immediately before
such
Distribution Date.
“Class
X-1 Adjusted Cap Rate”:
With respect to the Class X-1 Certificate for any Distribution Date, the
Pass-Through Rate for the Class X-1 Certificate, computed for this purpose
by
(i)
reducing the amount of interest accrued on the Mortgage Loans for the related
Due Period by the amount of any Net Deferred Interest for such Distribution
Date
and (ii) calculating the interest accrued on the Class 1-A1A, Class 1-A1B,
Class
2-A1A, Class 2-A1B, Class 2-A1C, and Class X-2A1B Certificates and the
Subordinate Certificates by substituting the related “Adjusted Cap Rate” for the
related “Net WAC Cap” in the definition of Pass-Through Rate for each such
Certificate.
“Class
X-1 Distributable Amount”:
With
respect to each Distribution Date, the sum of the Interest Distributable Amount
for such Distribution Date for the Class X-1 Certificates plus
all
Prepayment Penalty Amounts in respect of the Mortgage Loans received by the
Servicer for the related Prepayment Period.
“Class
X-1 Notional Balance”:
As of
any Distribution Date, the aggregate Class Principal Balance of the Class 1-A1A,
Class 1-A1B, Class 2-A1A, Class 2-A1C and Class PO-1 Certificates, and
Subordinate Certificates, at the end of the related Due Period.
“Class
X-1 Loan Group 1 Percentage”:
For
any Distribution Date and the Class X-1 Certificates, a percentage equivalent
to
the quotient of (i) the excess, if any, of (a) the interest accrued on the
Mortgage Loans in Loan Group 1 (net of Expense Fees and any Net Deferred
Interest for Loan Group 1 for such Distribution Date) for the related Due
period
over (b) the sum of interest accrued for the related Accrual Period on the
Class
1-A1A, Class 1-A1B, and Class A-R Certificates at the lesser of the applicable
Pass-Through Rate of the Adjusted Cap Rate and the Subordinate Component
for
Loan Group 1 (based on the weighted average of the lesser of Pass-Through
Rates
or Adjusted Cap Rates on each of the classes of Subordinate Certificates
for
such Distribution Date), divided by (ii) the Monthly Interest Distributable
Amount for the Class X-1 Certificates for such Distribution Date.
“Class
X-1 Loan Group 2 Percentage”:
For
any Distribution Date and the Class X-1 Certificates, a percentage equivalent
to
the quotient of (i) the excess, if any, of (a) the interest accrued on the
Mortgage Loans in Loan Group 2 (net of Expense Fees and any Net Deferred
Interest for Loan Group 2 for such Distribution Date) for the related Due
period
over (b) the sum of interest accrued for the related Accrual Period on the
Class
2-A1A, Class 2-A1B, Class 2-A1C and Class X-2A1B Certificates at the lesser
of
the applicable Pass-Through Rate of the Adjusted Cap Rate and the Subordinate
Component for Loan Group 2 (based on the weighted average of the lesser of
Pass-Through Rates or Adjusted Cap Rates on each of the classes of Subordinate
Certificates for such Distribution Date), divided by (ii) the Monthly Interest
Distributable Amount for the Class X-1 Certificates for such Distribution
Date.
“Class
X-2A1B Adjusted Cap Rate”:
With respect to the Class X-2A1B Certificate for any Distribution Date, the
Pass-Through Rate for the Class X-2A1B Certificate, computed for this purpose
by
reducing
the Group 2 Net WAC by a per annum rate equal to the quotient of (a) the Net
Deferred Interest of such Loan Group 2 for such Distribution Date multiplied
by
12,
divided
by
(b) the
Aggregate Principal Balance of the Loan Group 2 as of the first day of related
Due Period.
“Class
X-2A1B Notional Balance”:
As of
any Distribution Date, the aggregate Class Principal Balance of the Class 2-A1B
and Class PO-2A1B Certificates at the end of the related Due
Period.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
February 7, 2006.
15
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
U.S.
Securities and Exchange Commission.
“Commitment
Letter”:
The
letter dated the Closing Date from the Seller and the Depositor to the
Certificate Insurer (a copy of which has been furnished to the Trustee) setting
forth the payment arrangements for the Aggregate Premium Amount on the Financial
Guaranty Insurance Policy and certain related expense payment
arrangements
“Compensating
Interest Payment”:
With
respect to any Distribution Date, the
amount specified to be paid by the Servicer pursuant to Section 11.04(ix) of
the
Servicing Addendum to the Servicing Agreement.
“Component”:
Any of
the PO-1 Components.
“Component
Principal Balance”:
As of
any date of determination, the PO-1A1 Component Principal Balance or PO-1A2
Component Principal Balance, as applicable, on such date.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
As 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; (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 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.
16
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office 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 Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Attention: Corporate Trust, HarborView Mortgage Loan Trust 2006-1, or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, and the Seller. With respect to the
Certificate Registrar and presentment of Certificates for registration of
transfer, exchange or final payment is located at 000 Xxxx Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
“Corresponding
Class”:
With
respect to each Middle-Tier Interest, the Class or Classes of Certificates
so
designated in the Preliminary Statement.
“Countrywide”:
Countrywide Home Loans, Inc., and its successors and assigns, in its capacity
as
Originator of the Mortgage Loans.
“Countrywide
Servicing”:
Countrywide Home Loans Servicing LP, as a servicer of the Mortgage Loans as
set
forth and as individually defined in the Mortgage Loan Schedule hereto and
any
successors thereto.
“Custodial
Fee”:
The
monthly fee payable to the Custodian for its services rendered under the BONY
Custodial Agreement calculated at the Custodial Fee Rate of the outstanding
Principal Balance of each Mortgage Loan as of the first day of the related
Due
Period.
“Custodial
Fee Rate”:
0.0016% per annum.
“Custodian”:
The
Bank of New York, and its successors acting as custodian of the Mortgage
Files.
“Cut-off
Date”:
With
respect to any Mortgage Loan, the Close of Business in New York City on January
1, 2006.
“Cut-off
Date Collateral Balance”:
As to
any Distribution Date, the aggregate Stated Principal Balance of all Mortgage
Loans as of January 1, 2006.
“Cut-off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-off Date whether or not received as of the Cut-off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, unless the reduction results from a Deficient
Valuation.
“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.
17
“Deficiency
Amount”:
Means
with respect to the Insured Certificates, (a) for any Distribution Date prior
to
the Final Distribution Date, the sum of (1) the excess, if any, of the Monthly
Interest Distributable Amount on the Insured Certificates for such Distribution
Date, net of any Net Interest Shortfalls, Basis Risk Shortfalls and Net Deferred
Interest, over the amount of Available Funds to pay such net amount on the
Insured Certificates on such Distribution Date and (2) the amount, if any,
of
any Realized Losses allocable to the Insured Certificates on such Distribution
Date (after giving effect to all distributions to be made thereon on such
Distribution Date, other than pursuant to a claim on the Policy) and (b) for
the
Final Distribution Date, the sum of (x) the amount set forth in clause (a)(1)
above and (y) the aggregate outstanding Certificate Principal Balance of the
Insured Certificates, after giving effect to all payments of principal on the
Insured Certificates on such Final Distribution Date, other than pursuant to
a
claim on the Financial Guaranty Insurance Policy on that Distribution Date.
Deficiency Amount shall not include (a) any portion of a Deficiency Amount
due
to holders of the Insured Certificates because a notice and certificate in
proper form as required by the Financial Guaranty Insurance Policy was not
timely received by the Certificate Insurer and (b) any portion of a Deficiency
Amount due to holders of the Insured Certificates representing interest on
any
unpaid interest accrued from and including the date of payment by the
Certificate Insurer of the amount of such unpaid interest.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
18
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the Servicing Agreement, on which the Servicer determines the amount of
all
funds required to be remitted to the Trustee on the Servicer Remittance Date
with respect to the Mortgage Loans.
“Directly
Operate”:
With
respect to any REO Property, the furnishing or rendering of services to the
tenants thereof, the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers, the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by any REMIC formed hereby other than through an Independent
Contractor; provided,
however,
that
the Trustee (or the Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters
into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Trustee based upon an Opinion of Counsel
provided to the Trustee by nationally recognized counsel acceptable to the
Trustee that the holding of an ownership interest in a 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.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant to
Section 4.02 hereof for the benefit of the Certificate Insurer and the
Certificateholders and designated “Distribution Account, U.S. Bank National
Association, as Trustee, in trust for the registered Certificateholders of
HarborView Mortgage Loan Trust 2006-1, Mortgage Loan Pass-Through Certificates,
Series 2006-1” and which must be an Eligible Account.
“Distribution
Account Income”:
As 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 February 2006.
“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 that 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 that Distribution Date occurs and ending
on
the first day of the month in which that Distribution Date occurs.
19
“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 the Rating Agencies at the time any amounts are held on deposit
therein;
(ii) an
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the 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 each Rating Agency to the Trustee. Eligible Accounts may bear
interest.
“Endorsement”:
As
defined in the Financial Guaranty Insurance Policy.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class 1-A1B Certificates, the Subordinate Certificates and the Residual
Certificates, (ii) any Class 1-A1A, Class PO-1 or Class X-1 Certificates that
are not rated at least “AA-” (or its equivalent) by at least one nationally
rated statistical rating organization (“Rating Agency”) upon acquisition, (iii)
any Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-2A1B or Class PO-2A1B
Certificates that are not rated at least “BBB-” by at least one Rating Agency
upon acquisition or (iv) in general, any Certificate that does not satisfy
the
applicable rating requirement under the Underwriter's Exemption.
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
“Event
of Default”:
As
defined in the Servicing Agreement.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended.
20
“Expense
Fee”
With
respect to any Mortgage Loan, the sum of (i) the Servicing Fee, (ii) the Trustee
Fee, (iii) with respect to any Lender-Paid Mortgage Insurance Loan, the
Lender-Paid Mortgage Insurance Fee and (iv) the Custodial Fee.
“Xxxxxx
Xxx”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”:
With
respect to the Certificates other than the Insured Certificates, the
Distribution Date occurring in March 2036. With respect to the Insured
Certificates, the Distribution Date occurring in March 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 as
contemplated by Sections 2.03 and 10.01), a determination made by the Servicer,
and reported to the Trustee, that all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which the Servicer expects to be finally
recoverable in respect thereof have been so recovered.
“Financial
Guaranty Insurance Policy”:
The
Financial Guaranty Insurance Policy (No. 51713-N)
with
respect to the Insured Certificates, and all endorsements thereto dated the
Closing Date, issued by the Certificate Insurer for the benefit of the Holders
of the Insured Certificates, a copy of which is attached hereto as Exhibit
O.
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors and
assigns.
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Group
1 Adjusted Cap Rate”:
For any
Distribution Date and the Class 1-A1A and Class 1-A1B Certificates, the Group
1
Net WAC Cap for that Distribution Date, computed for this purpose by first
reducing the Group 1 Net WAC by a per annum rate equal to the quotient of (i)
the product of (a) the Net Deferred Interest, if any, on the Group 1 Mortgage
Loans for that Distribution Date multiplied
by
(b) 12,
divided
by
(ii) the
Pool Collateral Balance for Loan Group 1 as of the first day of the related
Due
Period (or in the case of the first Distribution Date, as of the Cut-off
Date).
“Group
1 Adjusted Net WAC”:
For
any Distribution Date, the excess of (i) the Group 1 Net WAC for such
Distribution Date over (ii) the quotient of (a) the product of (I) the Net
Deferred Interest for Loan Group 1 for such Distribution Date multiplied
by
(II) 12,
divided
by
(b) the
Pool Collateral Balance for Loan Group 1 for such Distribution Date.
21
“Group
1 Mortgage Loan”:
Each
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
1 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Group 1 Mortgage Loans as of the first day of the related Due Period (or,
in
the case of the first Distribution Date, as of the Cut-off Date), weighted
on
the basis of the related Stated Principal Balances at the beginning of the
related Due Period.
“Group
1 Net WAC Cap”:
For
any Distribution Date and the Class 1-A1A Certificates, the product of (i)
the
Group 1 Net WAC multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period. For any Distribution Date and
the
Class 1-A1B Certificates, (a) the product of (i) the Group 1 Net WAC
multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period less
(b) the
related insurance premium rate for such Distribution Date.
For
the
Class 1-A1B Certificates and the related Group 1 Net WAC Cap and Pass-Through
Rate, the per annum “insurance premium rate” for any Distribution Date is the
product of (i)(a) the Premium Amount for the Class 1-A1B Certificates for such
Distribution Date, divided
by
(b) the
Class Principal Balance of such Class immediately prior to such Distribution
Date, multiplied
by
(ii) the
quotient obtained by dividing 360 by the actual number of days in the related
Accrual Period for such Class.
“Group
2 Adjusted Cap Rate”:
For
any Distribution Date and the Class 2-A1A, Class 2-A1B and Class 2-A1C
Certificates, the Group 2 Net WAC Cap for that Distribution Date, computed
for
this purpose by first reducing the Group 2 Net WAC by a per annum rate equal
to
the quotient of (i) the product of (a) the Net Deferred Interest, if any, on
the
Group 2 Mortgage Loans for the Distribution Date multiplied
by
(b) 12,
divided
by
(ii) the
aggregate Pool Collateral Balance for Loan Group 2 as of the first day of the
related Due Period (or in the case of the first Distribution Date, as of the
Cut-off Date).
“Group
2-A1B Adjusted Middle-Tier Pay Rate”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied
by
(ii) the
weighted average of the interest rates on the XX0-X0X,
XX0-XXXX, MT2-YAIB and MT2-ZAIB 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 (a) first subjecting the interest rates on each
of
the MT2-QAIB, MT2-YAIB and MT2-ZAIB Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on the MT2-A1B Interest to a cap equal to the
Pass-Through Rate for their Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and a floor equal to the Group 2 Adjusted Net WAC.
“Group
2-A1B Adjusted Middle-Tier WAC”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied
by
(ii) the
weighted average of the interest rates on the XX0-X0X, XX0-XXXX, MT2-YAIB and
MT2-ZAIB 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 (a)
first subjecting the interest rate on each of the MT2-QAIB, MT2-YAIB and
MT2-ZAIB Interests to a cap of 0.00%, and (b) first subjecting the interest
rate
on the MT2-A1B Interest to a cap equal to the lesser of (I) the Pass-Through
Rate for the Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and (II) the Group 2 Adjusted Net WAC.
22
“Group
2 Adjusted Net WAC”:
For
any Distribution Date, the excess of (i) the Group 2 Net WAC for such
Distribution Date over (ii) the quotient of (a) the product of (I) the Net
Deferred Interest for Loan Group 2 for such Distribution Date multiplied
by
(II) 12,
divided
by
(b) the
Pool Collateral Balance for Loan Group 2 for such Distribution
Date.
“Group
2 Mortgage Loan”:
Each
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
2 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Group 2 Mortgage Loans as of the first day of the related Due Period (or,
in
the case of the first Distribution Date, as of the Cut-off Date), weighted
on
the basis of the related Stated Principal Balances at the beginning of the
related Due Period.
For
the
Class 2-A1C Certificates and the related Group 2 Net WAC Cap and Pass-Through
Rate, the per annum “insurance premium rate” for any Distribution Date is the
product of (i)(a) the Premium Amount for the Class 2-A1C Certificates for such
Distribution Date, divided
by
(b) the
Class Principal Balance of such Class immediately prior to such Distribution
Date, multiplied
by
(ii) the
quotient obtained by dividing 360 by the actual number of days in the related
Accrual Period for such Class.
“Group
2 Net WAC Cap”:
For
any Distribution Date and the Class 2-A1A Certificates, the product of (i)
the
Group 2 Net WAC multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period. For any Distribution Date and
the
Class 2-A1B Certificates, the Group 2 Net WAC. For any Distribution Date and
the
Class 2-A1C Certificates, (a) the product of (i) the Group 2 Net WAC
multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period less
(b) the
related insurance premium rate for such Distribution Date.
“Indemnification
Agreement”:
The
Indemnification Agreement dated as of the Closing Date among the Depositor,
the
Seller, Greenwich Capital Markets, Inc. and the Certificate Insurer, including
any amendments and supplements thereto.
“Indemnified
Parties”:
The
Trustee, the Depositor, the Custodian and the Certificate 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.
“Independent”:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor and its Affiliates, (b) does not have any direct
financial interest in or any material indirect financial interest in the
Depositor or any Affiliate thereof, and (c) is not connected with the Depositor
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however,
that a
Person shall not fail to be Independent of the Depositor or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of
any
class of securities issued by the Depositor or any Affiliate
thereof.
23
“Independent
Contractor”:
Either
(i) any Person that would be an “independent contractor” with respect to any
REMIC formed hereby within the meaning of Section 856(d)(3) of the Code if
such
REMIC were a real estate investment trust (except that the ownership tests
set
forth in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as no
REMIC formed hereby receives or derives any income from such Person and provided
that the relationship between such Person and the applicable REMIC is at arm’s
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5),
or
(ii) any other Person if the Trustee has received an Opinion of Counsel to
the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate other than the Interest-Only Certificates and Class
A-R-II Certificates, the amount designated “Initial Certificate Principal
Balance” on the face thereof.
“Initial
Certificate Notional Balance”:
With
respect to any Interest-Only Certificate, the amount designated “Initial
Certificate Notional Balance” on the face thereof.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the Servicing
Agreement.
“Insured
Amount”:
The
meaning assigned to the term “Guaranteed Distributions” in the Financial
Guaranty Insurance Policy.
“Insured
Certificate”:
Any
Class 1-A1B or Class 2-A1C Certificate.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates (other than
the
Class PO Certificates and Class A-R-II Certificates), the sum of (i) the
Monthly Interest Distributable Amount for that Class and (ii) the Unpaid
Interest Shortfall Amount for that Class.
“Interest-Only
Certificate”:
Any
Class X-1 or Class X-2A1B Certificate.
24
“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) actually received with respect to such prepayment 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) actually received with
respect to such prepayment at the time of such prepayment; and
(c) the
amount of any Relief Act Reductions for such Distribution Date.
“Late
Payment Rate”:
For
any Distribution Date, the lesser of (i) the greater of (a) the rate of
interest, as it is publicly announced by Citibank, N.A. at its principal office
in New York, New York as its prime rate (any change in such prime rate of
interest to be effective on the date such change is announced by Citibank,
N.A.)
plus
3% and (b) the then applicable highest rate of interest on the Insured
Certificates and (ii) the maximum rate permissible under applicable usury or
similar laws limiting interest rates. The Late Payment Rate shall be
computed on the basis of the actual number of days elapsed over a year of 360
days.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-off Date, the Distribution Date following the third
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”:
As 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 each Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the BBA for one-month United States dollar
deposits, as such rates appear on the Telerate Page 3750, as of 11:00 a.m.
(London time) on the related LIBOR Determination Date.
25
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.” If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the rate for such date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are
offered by the Reference Banks at approximately 11:00 am (London time) on such
date to prime banks in the London interbank market. In such event, the Trustee
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of the quotations (rounded
upwards if necessary to the nearest whole multiple of 1/16%). If fewer than
two
quotations are provided as requested, the rate for that date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected
by
the Trustee (after consultation with the Depositor), at approximately 11:00
a.m.
(New York City time) on such date for one-month U.S. dollar loan to leading
European banks.
(b) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Pass-Through Rate applicable to the LIBOR Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and
binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1C, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class
B-8, Class B-9, Class B-10, Class B-11 and Class B-12 Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
As to
any Distribution Date, any Mortgage Loan in respect of which the Servicer has
determined, in accordance with the servicing procedures specified herein, as
of
the end of the related Prepayment Period, that all Liquidation Proceeds that
it
expects to recover with respect to the liquidation of such Mortgage Loan or
disposition of the related REO Property have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the Servicing
Agreement.
26
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Servicer such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure
and
sale costs, including court costs and reasonable attorneys’ fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
Servicer as proceeds from the liquidation of such Mortgage Loan, as determined
in accordance with the applicable provisions of the Servicing Agreement, other
than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the Servicing Agreement, “Liquidation Proceeds” shall also include
amounts realized in connection with such repurchase, substitution or
sale.
“Loan
Group”:
Either
Loan Group 1 or Loan Group 2, as the context requires.
“Loan
Group Balance”:
As to
each Loan Group, the aggregate of the Stated Principal Balances of the Mortgage
Loans in such Loan Group that were Outstanding Mortgage Loans at the time of
determination.
“Loan
Group Collateral Balance”:
With
respect to each Loan Group and any date of determination, the applicable Loan
Group Balance.
“Loan
Group 1”:
At any
time, the Group 1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 2”:
At any
time, the Group 2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently 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 against any loss, cost or liability resulting from the failure to
deliver the original Mortgage Note) in the form of Exhibit H
hereto.
27
“Lower-Tier
Interest”:
Any
one of the interests in the Lower-Tier REMIC, as described in the Preliminary
Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Margin”:
On
each Distribution Date on or prior to the Call Option Date, (i) with respect
to
the Class 1-A1A Certificates, 0.260% per annum, and on each Distribution Date
after the Call Option Date, 0.520% per annum, (ii) with respect to the Class
1-A1B Certificates, 0.260% per annum, and on each Distribution Date after the
Call Option Date, 0.520% per annum, (iii) with respect to the Class 2-A1A
Certificates, 0.240% per annum, and on each Distribution Date after the Call
Option Date, 0.480% per annum, (iv) with respect to the Class 2-A1B
Certificates, 1.560% per annum, and on each Distribution Date after the Call
Option Date, 3.120% per annum, (v) with respect to the Class 2-A1C Certificates,
0.240% per annum, and on each Distribution Date after the Call Option Date,
0.480% per annum, (vi) with respect to the Class B-1 Certificates, 0.600% per
annum, and on each Distribution Date after the Call Option Date, 0.900% per
annum, (vii) with respect to the Class B-2 Certificates, 0.630% per annum,
and
on each Distribution Date after the Call Option Date, 0.945% per annum, (viii)
with respect to the Class B-3 Certificates, 0.660% per annum, and on each
Distribution Date after the Call Option Date, 0.990% per annum, (ix) with
respect to the Class B-4 Certificates, 1.000% per annum, and on each
Distribution Date after the Call Option Date, 1.500% per annum, (x) with respect
to the Class B-5 Certificates, 1.100% per annum, and on each Distribution Date
after the Call Option Date, 1.650% per annum, (xi) with respect to the Class
B-6
Certificates, 1.300% per annum, and on each Distribution Date after the Call
Option Date, 1.950% per annum and (xii) with respect to the Class B-7, Class
B-8, Class B-9, Class B-10, Class B-11 and Class B-12 Certificates, 1.750%
per
annum, and on each Distribution Date after the Call Option Date, 2.625% 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(R) System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“Middle-Tier
Interest”:
Any one
of the interests in the Middle-Tier REMIC, as described in the Preliminary
Statement.
28
“Middle-Tier
REMIC”:
As
described in the Preliminary Statement.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates (other than the Class PO Certificates
and
Class A-R-II Certificates) and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the lesser of the related Adjusted
Cap Rate and the related Pass-Through Rate on the Class Principal Balance or
Class Notional Balance, as applicable, immediately prior to that Distribution
Date; provided,
however,
that
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; provided,
further,
such
Monthly Interest Distributable Amount shall be reduced if the Pass-Through
Rate
applicable to such Class for the related Accrual Period exceeds the Adjusted
Cap
Rate applicable to such Class for such Distribution Date, subject to the
allocation priority set forth in Section 5.02 herein.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and
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(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of January 1, 2006, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s rights and interests in the Servicing Agreement) to or
at the direction of the Depositor.
29
“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)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
|
(iii)
|
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;
|
|
(iv)
|
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;
|
|
(v)
|
the
original months to maturity;
|
|
(vi)
|
the
stated remaining months to maturity from the Cut-off Date based on
the
original amortization schedule;
|
|
(vii)
|
the
Loan-to-Value Ratio at origination;
|
|
(viii)
|
the
Loan Rate in effect immediately following the Cut-off
Date;
|
|
(ix)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(x)
|
the
stated maturity date;
|
|
(xi)
|
the
Servicing Fee Rate, if any;
|
|
(xii)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xiii)
|
the
original principal balance of the Mortgage
Loan;
|
|
(xiv)
|
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);
|
30
|
(xv)
|
the
Index and Gross Margin specified in related Mortgage
Note;
|
|
(xvi)
|
the
next Adjustment Date, if
applicable;
|
|
(xvii)
|
the
Maximum Loan Rate, if applicable;
|
|
(xviii)
|
the
Value of the Mortgaged Property;
|
|
(xix)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xx)
|
the
product code;
|
|
(xxi)
|
whether
the Mortgage Loan is a Lender-Paid Mortgage Insurance
Loan;
|
|
(xxii)
|
the
Servicer that is servicing each Mortgage Loan and the Originator
of each
Mortgage Loan;
|
|
(xxiii)
|
the
respective Loan Group; and
|
|
(xxiv)
|
the
Custodian’s name, if there is more than one
Custodian.
|
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate and
by
Loan Group as of the Cut-off Date: (1) the number of Mortgage Loans;
(2) the current Principal Balance of the Mortgage Loans; (3) the
weighted average Loan Rate of the Mortgage Loans; and (4) the weighted
average remaining months to maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Seller in accordance with
the
provisions of this Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
“MT1-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT1-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 1 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 1 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT1-Z Interest
immediately preceding such Distribution Date.
31
“MT1-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT1-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 1 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 1 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT1-Y Interest immediately preceding such Distribution Date.
“MT2-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT2-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 2 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 2 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT2-Z Interest
immediately preceding such Distribution Date.
“MT2-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT2-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 2 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 2 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT2-Y Interest immediately preceding such Distribution Date.
“MTB-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MTB-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Net WAC Cap applicable to the Subordinate Certificates (computed assuming a
30-day accrual period) for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Subordinate Adjusted Cap Rate (computed assuming a 30-day accrual period) for
such Distribution Date, over (ii) the principal balance of the MTB-Z Interest
immediately preceding such Distribution Date.
“MTB-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MTB-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Subordinate
Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date divided
by
(B) the
product of (1) two multiplied
by
(2) the
Net WAC Cap applicable to the Subordinate Certificates (computed assuming a
30-day accrual period) for such Distribution Date, over (ii) the principal
balance of the MTB-Y Interest immediately preceding such Distribution
Date.
“MT2-YA1B
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT2-ZA1B Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 2 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 2 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT2-ZA1B Interest
immediately preceding such Distribution Date.
“MT2-ZA1B
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT2-YA1B Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 2 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 2 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT2-YA1B Interest immediately preceding such Distribution Date.
32
“MTA”:
With
respect to each Accrual Period, a per annum rate determined on each MTA
Determination Date in the following manner by the Trustee on the basis of the
twelve-month moving average monthly yield on United States Treasury Securities
adjusted to a constant maturity of one year as published by the Federal Reserve
Board in the Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”, determined by averaging the monthly yields for the most recently
available twelve months.
(a)
If on
any MTA Determination Date, MTA is no longer available, the Trustee shall select
a new index for the MTA Certificates that is based on comparable information.
When the Trustee selects a new index for the MTA Certificates, the Margin for
the MTA Certificates will increase or decrease by the difference the average
MTA
for the final three years it was in effect and the average of the most recent
three years for the replacement index. The Margin for the MTA Certificates
will
be increased by that difference if the average MTA is greater than the average
replacement index and the Margin for the MTA Certificates will be decreased
by
that difference if the average replacement index is greater than the average
MTA. The Trustee will have no liability for the selection of such alternative
index (and shall be entitled to rely on such advice, if any, as it may deem
appropriate in such selection), except that the Trustee will select a particular
index as the alternative index only if it receives an Opinion of Counsel, which
opinion shall be an expense reimbursed from the Distribution Account, that
the
selection of such index will not cause any REMIC created hereunder to lose
its
classification as a REMIC for federal income tax purposes.
(b)
The
establishment of MTA by the Trustee and the Trustee’s subsequent calculation of
the Pass-Through Rate applicable to the MTA Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and
binding.
“MTA
Certificates”:
The
Class 2-A1B Certificates.
“MTA
Determination Date”:
The
fifteenth day immediately prior the commencement of each Accrual Period for
the
MTA Certificates.
“Net
Deferred Interest”:
With
respect to each Loan Group and any Distribution Date, the greater of (i) the
excess, if any, of the Deferred Interest for the related Due Date over the
aggregate amount of any principal prepayments in part or in full received during
the related Prepayment Period and (ii) zero.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of 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.
33
“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, Servicing Advances, the Expense Fee, 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 related Servicing Fee Rate, Trustee Fee
Rate, Custodial Fee Rate and, if applicable, the Lender Paid Mortgage Insurance
Rate.
“Net
Maximum 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 Maximum
Loan Rate for such Mortgage Loan minus the related Servicing Fee Rate, Trustee
Fee Rate, Custodial Fee Rate and, if applicable, the Lender Paid Mortgage
Insurance Rate.
“Net
Maximum Rate Cap”:
For
any Distribution Date and the Class 1-A1A and Class 1-A1B Certificates, the
Group 1 Net WAC Cap, computed by assuming that each Group 1 Mortgage Loan
accrued interest at its Net Maximum Loan Rate.
For
any
Distribution Date and the Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates,
the Group 2 Net WAC Cap, computed by assuming that each Group 2 Mortgage Loan
accrued interest at its Net Maximum Loan Rate.
For
any
Distribution Date and the Subordinate Certificates, the Net WAC Cap for the
Subordinate Certificates, computed by assuming that each Mortgage Loan accrued
interest at its Net Maximum Loan Rate.
“Net
Realized Losses”:
For
any Class of Certificates and any Distribution Date, the excess of (i) the
amount of Realized Losses previously allocated to that Class or PO Component
over (ii) the amount of any increases to the Class Principal Balance of that
Class or Component Principal Balance pursuant to Section 5.08 due to
Recoveries.
“Net
WAC”:
With
respect to any Distribution Date and each Loan Group, the Group 1 Net WAC or
the
Group 2 Net WAC, as applicable.
“Net
WAC Cap”:
For
any Distribution Date and the Class 1-A1A Certificates, the product of (i)
the
Group 1 Net WAC and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
With
respect to any Distribution Date and the Class 1-A1B Certificates, (a) the
product of (i) the Group 1 Net WAC and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the related
Accrual Period minus
(b) the
related Premium Rate for such Distribution Date.
34
With
respect to any Distribution Date and the Class 2-A1A Certificates, the product
of (i) the Group 2 Net WAC and (ii) a fraction, the numerator of which is 30
and
the denominator of which is the actual number of days in the related Accrual
Period.
With
respect to any Distribution Date and the Class 2-A1B Certificates, the Group
2
Net WAC.
With
respect to any Distribution Date and the Class 2-A1C Certificates, (a) the
product of (i) the Group 2 Net WAC and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the related
Accrual Period minus
(b) the
related Premium Rate for such Distribution Date.
With
respect to any Distribution Date and the Subordinate Certificates, the product
of (i) the Subordinate Net WAC and (ii) a fraction, the numerator of which
is 30
and the denominator of which is the actual number of days in the related Accrual
Period.
“Nonrecoverable”:
A
determination by the Servicer in respect of a delinquent Mortgage Loan that
if
it were to make an Advance or an advance of a delinquent Monthly Payment,
respectively, in respect thereof, such amount would not be recoverable from
any
collections or other recoveries (including Liquidation Proceeds) on such
Mortgage Loan.
“Notice”:
As
defined in the Financial Guaranty Insurance Policy.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller or the Depositor, as applicable.
“One-Month
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).
“One-Month
MTA Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the MTA index.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee, 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.
35
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
|
Class
B-1
|
10.50
|
%
|
||
|
Class
B-2
|
8.50
|
%
|
||
|
Class
B-3
|
7.10
|
%
|
||
|
Class
B-4
|
6.25
|
%
|
||
|
Class
B-5
|
5.45
|
%
|
||
|
Class
B-6
|
4.75
|
%
|
||
|
Class
B-7
|
4.10
|
%
|
||
|
Class
B-8
|
3.55
|
%
|
||
|
Class
B-9
|
3.05
|
%
|
||
|
Class
B-10
|
2.60
|
%
|
||
|
Class
B-11
|
1.80
|
%
|
||
|
Class
B-12
|
0.80
|
%
|
||
“Original
Class Notional Balance”:
With
respect to the Class X-1 Certificates, $1,483,848,897.20. With respect to the
Class X-2A1B Certificates, $259,961,100.00.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates, other than the Interest-Only
Certificates, Class PO Certificates and the Class A-R-II Certificates, the
corresponding aggregate amount set forth opposite the Class designation of
such
Class in the Preliminary Statement.
“Original
Subordinated Principal Balance”:
The
aggregate of the Original Class Principal Balances of the Classes of Subordinate
Certificates.
“Originator”:
Countrywide or any other originator contemplated by Item
1110 (Sec.
229.1110) of
Regulation AB.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates (other than the Class PO and Class A-R-II
Certificates) and any Distribution Date, the rate set forth below:
(i) The
Pass-Through Rate for the Class 1-A1A Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
36
(ii) The
Pass-Through Rate for the Class 1-A1B Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(iii) The
Pass-Through Rate for the Class A-R Certificate shall be equal to the Group
1
Net WAC for that Distribution Date;
(iv) The
Pass-Through Rate for the Class 2-A1A Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(v) The
Pass-Through Rate for the Class 2-A1B Certificates shall be equal to the least
of (a) MTA plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(vi) The
Pass-Through Rate for the Class 2-A1C Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(vii) The
Pass-Through Rate for the Class X-1 Certificates on any Distribution Date shall
be equal to the quotient of (a) the product of (1) the excess, if any, of (i)
the interest accrued on the Mortgage Loans for the related Due Period (net
of Expense Fees) minus (ii) the interest accrued for the related Accrual
Period on the Certificates (other than the Class X-1 Certificates) multiplied
by
(2) 12,
divided
by
(b) the
Class X-1 Notional Balance for such Distribution Date;
(viii) The
Pass-Through Rate for the Class X-2A1B Certificates on any Distribution Date
shall be equal to the excess, if any, of (a) the
Group 2 Net WAC minus (b) a rate equal to the quotient of (1) the product of
(x)
the interest accrued at the applicable Pass-Through Rates on the Class 2-A1B
Certificates for such Distribution Date and (y) 12 divided
by
(2) the aggregate Class Principal Balance of the Class 2-A1B and Class PO-2A1B
Certificates as of the first day of the month immediately preceding such
Distribution Date;
(ix) The
Pass-Through Rate for the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5,
Class B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class B-11 and Class
B-12 Certificates shall be equal to the least of (a) LIBOR plus the
applicable Margin, (b) the Subordinate Net WAC Cap for that Distribution
Date and (c) the applicable Net Maximum Rate Cap for that Distribution
Date.
“Percentage
Interest”:
With
respect to any Certificate other than a Class A-R or Class A-R-II Certificate,
a
fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of which is
the
Original Class Principal Balance or Original Class Notional Balance, as
applicable, of the related Class. With respect to the Class A-R and Class A-R-II
Certificates, 100%.
37
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by the
Depositor, the Trustee or any of their respective Affiliates or for which an
Affiliate of the Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee, or its 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 Rating Agency and (B) any
other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by each Rating Agency;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of
Columbia or any State thereof and that are rated by each Rating Agency in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the Investment
Company Act of 1940 including funds managed or advised by the Trustee or an
affiliate thereof having the highest applicable rating from each Rating Agency;
and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to each Rating Agency in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial ratings
of
the Senior Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
38
“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 A-R and Class A-R-II Certificates.
“PO
Component”:
Each
of the PO-1A1 Component and the Class PO-1A2 Component, as
applicable.
“PO-1A1
Component”:
The
Principal-Only Component of the Class PO-1 Certificates that relates to the
Group 1 Mortgage Loans.
“PO-1A1
Component Principal Balance”:
As of
the Closing Date, $50; thereafter, as increased by amounts of Net Deferred
Interest allocated to the Class X-1 Certificates in respect of the Group 1
Mortgage Loan as set forth in Section 5.02 herein.
“PO-1A2
Component”:
The
Principal-Only Component of the Class PO-1 Certificates that relates to the
Group 2 Mortgage Loans.
“PO-1A2
Component Principal Balance”:
As of
the Closing Date, $50; thereafter, as increased by amounts of Net Deferred
Interest allocated to the Class X-1 Certificates in respect of the Group 2
Mortgage Loan as set forth in Section 5.02 herein.
“Policy
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant to
Section 4.05 hereof in the name of the Trustee for the benefit of the Class
1-A1B and Class 2-A1C Certificateholders and designated “Policy Account, U.S.
Bank National Association, as Trustee, in trust for the registered
Certificateholders of HarborView Mortgage Loan Trust 2006-1, Mortgage
Pass-Through Certificates, Series 2006-1, Class 1-A1B and Class 2-A1C
Certificates.”
“Pool
Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal
Balances, as of 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.
“Premium
Amount”:
Each
of the Class 1-A1B Premium Amount or Class 2-A1C Premium Amount, as
applicable.
“Premium
Proceeds”:
The
amount by which the Termination Price paid in connection with the termination
pursuant to Section 10.01 exceeds the sum of (i) unpaid principal and accrued
and unpaid interest on the Certificates (excluding any Basis Risk Shortfalls
that remain unpaid), (ii) unreimbursed Advances and Servicing Advances and
(iii)
all amounts, if any, then due and owing to the Trustee and the Certificate
Insurer under this Agreement.
39
“Premium
Rate”:
0.09%
of the outstanding aggregate Class Principal Balances of the Class 1-A1B and
Class 2-A1C Certificates.
“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.
“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”:
As 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 applicable 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. As
to
any REO Property and any day, the Principal Balance of the related Mortgage
Loan
immediately prior to such Mortgage Loan becoming REO Property.
“Principal
Deficiency Amount”:
For
any Distribution Date and for any Undercollateralized Group, the excess, if
any,
of the aggregate Class Principal Balance and Component Principal Balance of
such
Undercollateralized Group immediately prior to such Distribution Date over
the
sum of the Principal Balances of the Mortgage Loans in the related Loan Group
immediately prior to such Distribution Date.
“Principal
Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of (a) each
scheduled payment of principal collected or advanced on the related Mortgage
Loans (before taking into account any Deficient Valuations or Debt Service
Reductions) by the Servicer in respect of the related Due Period, (b) that
portion of the Purchase Price, representing principal of any repurchased
Mortgage Loan in that Loan Group, deposited to the Distribution Account during
the related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments with respect to that Loan Group deposited in the
Distribution Account during the related Prepayment Period, (d) the
principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans in that Loan Group that are
not
yet Liquidated Mortgage Loans, (e) the principal portion of all Net
Liquidation Proceeds received during the related Prepayment Period with respect
to Liquidated Mortgage Loans other than Recoveries in that Loan Group,
(f) all Principal Prepayments (net of Deferred Interest) in part or in full
on Mortgage Loans in that Loan Group applied by the Servicer during the related
Prepayment Period, (g) all Recoveries related to that Loan Group received during
the calendar month preceding the month of that Distribution Date and (h) on
the Distribution Date on which the Trust is to be terminated pursuant to Section
10.01 hereof, that portion of the Termination Price in respect of principal
for
that Loan Group.
40
“Principal-Only
Component”:
Any PO
Component, as applicable.
“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.
“Private
Certificates”:
The
Class B-10, Class B-11, Class B-12 and Class A-R-II Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated January 25, 2006 relating to the initial
sale
of the Class B-10, Class B-11 and Class B-12 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 September
26, 2005, relating to the Senior Certificates and the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class
B-9
Certificates.
“Prospectus
Supplement”:
The
Prospectus Supplement dated January 25, 2006 relating to the offering of the
Senior Certificates and the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates.
“Purchase
Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement dated as of April 1,
2003,
as amended by that certain Amendment Number One dated November 1, 2004, and
as
further amended by that certain Amendment Reg AB dated December 1, 2005, between
GCFP, as purchaser, and Countrywide, as seller, as reconstituted by the
Reconstitution Agreement, and as supplemented by the Representation Letter,
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, an amount equal to the sum of
(i) 100% of the Principal Balance thereof as of the date of purchase (or
such other price as provided in Section 10.01), plus (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal Balance at the
applicable Loan Rate (or if the servicer is repurchasing such Mortgage Loan,
the
Loan Rate minus the Servicing Fee Rate) from the Due Date as to which interest
was last covered by a payment by the Mortgagor through the end of the calendar
month in which the purchase is to be effected, and (y) an REO Property, the
sum of (1) accrued interest on such Principal Balance at the applicable
Loan Rate (or if the servicer is repurchasing such Mortgage Loan, the Loan
Rate
minus the Servicing Fee Rate) from the Due Date as to which interest was last
covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such
REO
Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus (iii) any
unreimbursed Servicing Advances and any unpaid Expense Fees allocable to such
Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and damages
incurred by the Trust in connection with any violation by such Mortgage Loan
of
any predatory- or abusive-lending laws.
41
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a Xxxxxx Xxx-approved mortgage
insurer and having a claims paying ability rating of at least “AA” or equivalent
rating by a nationally recognized statistical rating organization. Any
replacement insurer with respect to a Mortgage Loan must have at least as high
a
claims paying ability rating as the insurer it replaces had on the Closing
Date.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
as of the date of substitution equal to or lower than the Loan-to-Value Ratio
of
the Deleted Mortgage Loan as of such date, (ix) have been underwritten or
re-underwritten in accordance with the same or substantially similar
underwriting criteria and guidelines as the Deleted Mortgage Loan, (x) is of
the
same or better credit quality as the Deleted Mortgage Loan and (xi) conform
to each representation and warranty set forth in Section 2.04 hereof applicable
to the Deleted Mortgage Loan. In the event that one or more mortgage loans
are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (vi) hereof shall be determined on
the basis of weighted average remaining term to maturity and the Loan-to-Value
Ratio described in clause (viii) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
42
“Rating
Agency”:
Each
of S&P and Xxxxx’x. If any rating agency or its successor shall no longer be
in existence, “Rating Agency” shall include such nationally recognized
statistical rating agency, or other comparable Person, as shall have been
designated by the Depositor, notice of which designation shall be given to
the
Trustee.
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Reconstitution
Agreement”:
The
reconstituted servicing agreement dated as of January 1, 2006 among the Seller,
Countrywide and the Servicer and acknowledged by the Trustee.
“Record
Date”:
With
respect to each Distribution Date (other than the initial Distribution Date)
and
the MTA Certificates, the Interest-Only Certificates and the Class A-R
Certificates, the last Business Day of the calendar month immediately preceding
the month in which that Distribution Date occurs. With respect to each
Distribution Date (other than the initial Distribution Date) and the LIBOR
Certificates, the last Business Day immediately preceding that Distribution
Date, unless any LIBOR Certificates are no longer Book-Entry Certificates,
in
which case the Record Date for the related Class of LIBOR Certificates shall
be
the last Business Day of the calendar month immediately preceding the month
in
which that Distribution Date occurs. With respect to the initial Distribution
Date and all Classes of Certificates, the Closing Date.
“Recovery”:
With
respect to any Distribution Date and Mortgage Loan that became a Liquidated
Mortgage Loan in a 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 or Principal-Only Components, an amount received in
respect of such Liquidated Mortgage Loan during the prior calendar month, net
of
any reimbursable expenses.
“Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, which shall not control, be controlled by,
or
be under common control with, the Trustee and shall have an established place
of
business in London. Until all of the LIBOR Certificates are paid in full, the
Trustee will at all times retain at least four Reference Banks for the purpose
of determining LIBOR with respect to each LIBOR Determination Date. The Trustee
initially shall designate the Reference Banks (after consultation with the
Depositor). If any such Reference Bank should be unwilling or unable to act
as
such or if the Trustee should terminate its appointment as Reference Bank,
the
Trustee shall promptly appoint or cause to be appointed another Reference Bank
(after consultation with the Depositor). The Trustee shall have no liability
or
responsibility to any Person for (i) the selection of any Reference Bank
for purposes of determining LIBOR or (ii) any inability to retain at least
four Reference Banks which is caused by circumstances beyond its reasonable
control.
43
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-1,
Class X-2A1B, Class PO-1, Class PO-2A1B, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class
B-11 or Class B-12 Certificate.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Sec.Sec.229.1100-229.1123, as such may be amended from time to time, and subject
to such clarification and interpretation as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“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.
44
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not, under the REMIC Provisions, (i) cause any REMIC created
hereunder to fail to qualify as a REMIC while any regular interest in such
REMIC
is outstanding, (ii) result in a tax on prohibited transactions with respect
to
any REMIC created hereunder or (iii) constitute a taxable contribution to any
REMIC created hereunder after the Startup Day.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Servicer’s Remittance Report to the Trustee pursuant to the Servicing Agreement
providing information with respect to each Mortgage Loan which is provided
no
later than the 10th
calendar
day of each month and which shall contain such information as may be agreed
upon
by the Trustee and which shall be sufficient to enable the Trustee to prepare
the related Distribution Date Statement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by the Servicer in respect of an REO Property
pursuant to the Servicing Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the
Trust.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of the Trust Fund, one month’s interest at the applicable Net Loan
Rate for such REO Property on the Principal Balance of such REO Property (or,
in
the case of the first such calendar month, of the related Mortgage Loan if
appropriate) as of the Close of Business on the Due Date in such calendar
month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the Servicing Agreement in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable
or
reimbursable to the Servicer pursuant to the applicable provisions of the
Servicing Agreement for unpaid Servicing Fees in respect of the related Mortgage
Loan and unreimbursed Servicing Advances and Advances in respect of such REO
Property or the related Mortgage Loan, over (b) the REO Imputed Interest in
respect of such REO Property for such calendar month.
45
“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.
“Representation
Letter”:
The
letter from Countrywide to GCFP dated as of the Closing Date, pursuant to which
Countrywide, under the terms of the Purchase Agreement, makes additional
representations and warranties as agreed upon by GCFP and Countrywide.
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“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”:
Each
of the Class A-R and Class A-R-II Certificates.
“Responsible
Officer”:
When
used with respect to the Trustee or any director, the President, any vice
president, any assistant vice president, any associate or any other officer
of
the Trustee customarily performing functions similar to those performed by
any
of the above designated officers and, with respect to a particular matter,
to
whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
“Restricted
Classes”:
As
defined in Section 5.01(d).
“Restricted
Global Security”:
As
defined in Section 6.01.
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification covering, among other things, servicing of the Mortgage
Loans by the Servicer and signed by an officer of the Depositor that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
the February 21, 2003 Statement by the Staff of the Division of Corporation
Finance of the Securities and Exchange Commission Regarding Compliance by
Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14, 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 Statement referred to in clause
(ii) is modified or superseded by any subsequent statement, rule or regulation
of the Securities and Exchange Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published by
the
Securities and Exchange Commission from time to time pursuant to the
Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Depositor, materially more onerous than the
form of the required certification as of the Closing Date, the Xxxxxxxx-Xxxxx
Certification shall be as agreed to by the Depositor and the Seller following
a
negotiation in good faith to determine how to comply with any such new
requirements.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., and any successor thereto.
46
“Securities
Act”:
The
Securities Act of 1933, as amended.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any of
the Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B, Class 2-A1C, Class
X-1,
Class PO-1, Class A-R or Class A-R-II Certificates.
“Senior
Certificate Group”:
Any of
(a) the Class 1-A1A, Class 1-A1B and Class A-R, with respect to Loan Group
1,
(b) the Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-2A1B and Class PO-2A1B
Certificates with respect to Loan Group 2 and (c) the Class PO-1 and Class
X-1
Certificates with respect to both Loan Groups.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
first Distribution Date on which the Class Principal Balance of each Class
of
Subordinate Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to each Loan Group and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the aggregate of the Class Principal
Balances and Component Principal Balances of the Classes of Senior Certificates
and Principal-Only Components relating to that Loan Group immediately prior
to
such Distribution Date and the denominator of which is the Loan Group Balance
in
the related Loan Group for such Distribution Date; provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates and Principal-Only Component related to a Loan Group,
the Senior Percentage for the related Loan Group will be equal to 0% and;
provided,
further, that
on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates and Principal-Only Component related to a Loan Group,
the Senior Percentage of the Loan Group related to the remaining Senior
Certificates and Principal-Only Component is the percentage equivalent of a
fraction, the numerator of which is the aggregate of the Certificate Principal
Balances of each remaining Class of Senior Certificates and Principal-Only
Component immediately prior to such date and the denominator of which is the
aggregate of the Certificate Principal Balances of all Classes of Certificates,
immediately prior to such date.
“Senior
Prepayment Percentage”:
With
respect to each Loan Group and any Distribution Date before the Distribution
Date in February 2016, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Loan Group for any Distribution Date occurring on or after
the tenth anniversary of the first Distribution Date will be as follows:
(i) from February 2016 through January 2017, the related Senior Percentage
plus 70% of the related Subordinate Percentage for that Distribution Date;
(ii) from February 2017 through
January 2018, the related Senior Percentage plus 60% of the related Subordinate
Percentage for that Distribution Date; (iii) from February 2018 through
January 2019, the related Senior Percentage plus 40% of the related Subordinate
Percentage for that Distribution Date; (iv) from February 2019 through
January 2020, the related Senior Percentage plus 20% of the related Subordinate
Percentage for that Distribution Date; and (v) from and after February
2020, the related Senior Percentage for that Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage for any Loan
Group unless the Step Down Conditions are satisfied on that Distribution Date;
and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in February
2016, the Senior Percentage for any Loan Group exceeds the initial Senior
Percentage for such Loan Group, the related Senior Prepayment Percentage for
that Distribution Date will again equal 100%.
47
Notwithstanding
the above, (i) if on any Distribution Date prior to the Distribution Date in
February 2009 the Two Times Test is satisfied, the Senior Prepayment Percentage
for each Loan Group will equal the related Senior Percentage for such
Distribution Date plus 50% of an amount equal to 100% minus the related Senior
Percentage for such Distribution Date and (ii) if
on any
Distribution Date on or after the Distribution Date in February 2009 the Two
Times Test is satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution
Date.
“Senior
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of:
(1) the
related Senior Percentage of all amounts described in clauses (a) through (d)
of
the definition of “Principal Distribution Amount” with respect to such Loan
Group for that Distribution Date; plus
(2) with
respect to each Mortgage Loan in that Loan Group which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
|
(x)
|
the
related Senior Percentage of the Stated Principal Balance of that
Mortgage
Loan; and
|
|
(y)
|
the
related Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received with respect to that Mortgage
Loan; plus
|
(3) the
related Senior Prepayment Percentage of the amounts described in clauses (f)
and
(g) of the definition of “Principal Distribution Amount” with respect to
such
Loan
Group.
“Senior
Termination Date”:
For
each Senior Certificate Group and Principal-Only Component, the Distribution
Date on which the aggregate of the Class Principal Balances and related
Component Principal Balance of the related Senior Certificates and
Principal-Only Component is reduced to zero.
“Servicer”:
Countrywide Home Loans Servicing LP, as primary servicer of the Mortgage Loans
as set forth and as individually defined in the Mortgage Loan Schedule hereto
and any successors thereto.
48
“Servicer
Remittance Date”:
The
“Remittance Date” defined in the Servicing Agreement.
“Servicing
Account”:
Any
account established and maintained by the Servicer with respect to the related
Mortgage Loans and any REO Property, pursuant to the terms of the Servicing
Agreement.
“Servicing
Addendum”:
As
defined in the Servicing Agreement.
“Servicing
Advances”:
With
respect to the 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 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) compliance with the obligations under
Article III hereof or the Servicing Agreement.
“Servicing
Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement dated as of April 1,
2003,
as amended by that certain Amendment Number One dated November 1, 2004, and
as
further amended by that certain Amendment Reg AB dated December 1, 2005, between
GCFP, as purchaser, and Countrywide, as seller, as reconstituted by the
Reconstitution Agreement, as the same may be amended from time to time, and
any
assignments and conveyances related to the Mortgage Loans.
“Servicing
Fee”:
With
respect to the Servicer and each Mortgage Loan and for any calendar month,
the
fee payable to the Servicer determined pursuant to the Servicing
Agreement.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum servicing fee rate set forth on
the
Mortgage Loan Schedule.
“Servicing
Officer”:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of Mortgage Loans, whose name and specimen signature appear on a
list
of servicing officers furnished to the Trustee and the Depositor on the Closing
Date, as such list may from time to time be amended.
“Sponsor”:
Greenwich Capital Financial Products, Inc.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) 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 applicable Cut-off Date
and
on or before the Due Date in the related Due Period, whether or not received,
(ii) all Principal Prepayments received after the applicable 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 such date of determination and (b) 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, 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.
49
“Step
Down Conditions”:
As of
the first Distribution Date as to which any decrease in any Senior Prepayment
Percentage applies and each Loan Group, (i) the outstanding Principal Balance
of
all Mortgage Loans in such Loan Group 60 days or more Delinquent (including
related Mortgage Loans in REO and foreclosure) (averaged over the preceding
six
month period), as a percentage of the aggregate of the Class Principal Balances
of the Classes of Subordinate Certificates related to such Loan Group on such
Distribution Date, does not equal or exceed 50% and (ii) cumulative
Realized Losses with respect to all of the Mortgage Loans in such Loan Group
do
not exceed:
|
·
|
for
any Distribution Date on or after the tenth anniversary of the first
Distribution Date, 30% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
|
|
·
|
for
any Distribution Date on or after the eleventh anniversary of the
first
Distribution Date, 35% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
|
|
·
|
for
any Distribution Date on or after the twelfth anniversary of the
first
Distribution Date, 40% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
|
|
·
|
for
any Distribution Date on or after the thirteenth anniversary of the
first
Distribution Date, 45% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing Date,
and
|
|
·
|
for
any Distribution Date on or after the fourteenth anniversary of the
first
Distribution Date, 50% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date.
|
50
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) or Regulation AB with respect
to
Mortgage Loans under the direction or authority of a Servicer or related
Subservicer.
“Subordinate
Adjusted Cap Rate”:
With
respect to any Distribution Date and the Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates,
the
weighted average of the Group 1 Adjusted Cap Rate and the Group 2 Adjusted
Cap
Rate (computed for this purpose without regard to the adjustment applicable
to
the Insured Certificates),
weighted on the basis of the Subordinate Components for Loan Group 1 and Loan
Group 2.
“Subordinate
Adjusted Net WAC”:
With
respect to any Distribution Date, the weighted average of the Group 1 Adjusted
Net WAC and Group 2 Adjusted Net WAC for such Distribution Date, weighted on
the
basis of the Subordinate Component for Loan Group 1 and Loan Group 2 for such
Distribution Date.
“Subordinate
Certificate”:
Any of
the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-7,
Class B-8, Class B-9, Class B-10, Class B-11 or Class B-12
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 Mortgage 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 product of (i) (a) the lesser of the Pass-Through Rate for
such Class or the applicable Adjusted Cap Rate, divided
by
(b) 12
and (ii) the Class Certificate Principal Amount of such Class of Subordinate
Certificates as of the beginning of the related Accrual Period.
“Subordinate
Component”:
With
respect to each Loan Group and any Distribution Date, the excess of the sum
of
the related Pool Collateral Balance for such Distribution Date over the
aggregate Class Principal Balance and Component Principal Balance of the related
Senior Certificate Group and Principal-Only Component immediately preceding
such
Distribution Date.
51
“Subordinate
Net WAC”:
With
respect to any Distribution Date, the weighted average of the Group 1 Net WAC
and the Group 2 Net WAC for such Distribution Date, calculated without regard
to
any insurance premium rate and weighted on the basis of the Subordinate
Components for Loan Group 1 and Loan Group 2 for such Distribution
Date.
“Subordinate
Net WAC Cap”:
With
respect to the Subordinate Certificates and any Distribution Date, the product
of (i) the Subordinate Net WAC for such Distribution Date multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period.
“Subordinate
Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Percentage for such Loan Group on such Distribution
Date; provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to the Senior Certificates and Principal-Only Components related
to
a Loan Group, the Subordinate Percentage will represent the entire interest
of
the Subordinate Certificates in the Mortgage Loans and will equal the difference
between 100% and the related Senior Percentage for such Distribution
Date.
“Subordinate
Prepayment Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Prepayment Percentage for such Distribution
Date.
“Subordinate
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, an amount equal to the
sum
of:
(1) the
related Subordinate Percentage of all amounts described in clauses (a) through
(d) of the definition of “Principal Distribution Amount” for that Loan Group and
Distribution Date;
(2) with
respect to each Mortgage Loan in such Loan Group that became a Liquidated
Mortgage Loan during the related Prepayment Period, the amount of the Net
Liquidation Proceeds allocable to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the definition
of
“Senior Principal Distribution Amount” for that Loan Group and Distribution
Date, up to the related Subordinate Percentage of the Stated Principal Balance
of such Mortgage Loan; and
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(f) and (g) of the definition of “Principal Distribution Amount” for such Loan
Group and Distribution Date;
provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to the Senior Certificates and Principal-Only Component related
to
one Loan Group, the Subordinate Principal Distribution Amount will not be
calculated by that Loan Group but will equal the amount calculated pursuant
to
the formula set forth above based on the Subordinate Percentage or Subordinate
Prepayment Percentage, as applicable, for such Distribution Date with respect
to
all the Mortgage Loans rather than the Mortgage Loans in the related Loan
Group.
52
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of a Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
require to be performed by a Servicer under the applicable Servicing Agreement
that are identified in Item 1122(d) of Regulation AB.
“Substitution
Adjustment”:
As
defined in Section 2.03(d) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
every REMIC 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.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust”:
HarborView Mortgage Loan Trust 2006-1, the trust created hereunder.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, 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, excluding Prepayment Penalty Amounts in respect of Group 1 and Group
2
Mortgage Loans, (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; (viii) the Financial Guaranty
Insurance Policy and (ix) all proceeds of the foregoing. Notwithstanding the
foregoing, however, the Trust Fund specifically excludes (1) all payments
and other collections of interest and principal due on the Mortgage Loans on
or
before the applicable Cut-off Date and principal received before the applicable
Cut-off Date (except any principal collected as part of a payment due after
the
applicable Cut-off Date) and (2) all income and gain realized from
Permitted Investments of funds on deposit in the Distribution
Account.
53
“Trustee”:
U.S.
Bank National Association, its successors and assigns, or any successor trustee
appointed as provided herein.
“Trustee
Certification”:
A
certification of the Trustee substantially in the form of Exhibit
P.
“Trustee
Fee”:
The
monthly fee payable to the Trustee for its services rendered under this
Agreement calculated at the Trustee Fee Rate of the outstanding Principal
Balance of each Mortgage Loan as of the first day of the related Due
Period.
“Trustee
Fee Rate”:
0.0005% per annum.
“Two
Times Test”:
As to
any Distribution Date, a test that will be satisfied if all of the following
conditions are satisfied: (i) the Aggregate Subordinate Percentage is at least
two times the Aggregate Subordinate Percentage as of the Closing Date; (ii)
the
outstanding Principal Balance of all Mortgage Loans in such Loan Group 60 days
or more Delinquent (including related Mortgage Loans in REO and foreclosure)
(averaged over the preceding six month period), as a percentage of the aggregate
of the Class Principal Balances of the Classes of Subordinate Certificates
related to such Loan Group on such Distribution Date, does not equal or exceed
50%; and (iii) on or after the Distribution Date in February 2009, cumulative
Realized Losses do not exceed 30% of the Original Subordinated Principal Balance
or prior to the Distribution Date in February 2009, cumulative Realized Losses
do not exceed 20% of the Original Subordinated Principal Balance.
“Undercollateralized
Group”:
With
respect to any Distribution Date and any Loan Group, as to which the aggregate
Class Principal Balance and Component Principal Balance of the related classes
of Senior Certificates and Principal-Only Component, after giving effect to
distributions pursuant to Section 5.01(a) on such date, is greater than the
Loan
Group Balance of the related Loan Group for such Distribution Date.
“Underwriter”:
Greenwich Capital Markets, Inc.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by Prohibited Transaction Exemption 97-34 (Exemption Application Nos.
D-10245 and D-10246), as amended by Prohibited Transaction Exemption 2000-58
(Exemption Application No. D-10829) and as amended by Prohibited Transaction
Exemption 2002-41 (Exemption Application No. D-11077) (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.
54
“United
States Person”
or
“U.S.
Person”:
A
“United States person” within the meaning set forth in Section 7701(a)(30)
of the Code or successor provisions.
“Unpaid
Interest Shortfall Amount”:
With
respect to each Class of Certificates (other than the Class PO Certificates
and
Class A-R-II Certificate) and (i) the first Distribution Date, zero, and
(ii) any Distribution Date after the first Distribution Date, the amount, if
any, by which (1)(a) the Monthly Interest Distributable Amount for that Class
for the immediately preceding Distribution Date exceeds (b) the aggregate amount
distributed on that Class in respect of such Monthly Interest Distributable
Amount on the preceding Distribution Date plus (2) any such shortfalls remaining
unpaid from prior Distribution Dates.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac; and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 97% of the voting rights shall be allocated among the Classes
of Regular Certificates (other than the Interest-Only Certificates and the
Class
A-R Certificate), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding, 1% of the voting rights shall
be
allocated to the Class X-1 Certificates, 1% of the voting rights shall be
allocated to the Class X-2A1B Certificates and 1% of the voting rights shall
be
allocated to the Class A-R Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance, as applicable, of each Certificate of such Class
and the denominator of which is the Class Principal Balance or Class Notional
Balance, as applicable, of such Class; provided,
however,
that
any Certificate registered in the name of the Trustee or any of its affiliates
shall not be included in the calculation of Voting Rights. No voting rights
shall be allocated to the Class A-R-II Certificate.
55
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“X-1
Required Reserve Fund Deposit”:
With
respect to the Class X-1 Certificates and any Distribution Date, an amount
equal
to the lesser of (i) the Interest Distributable Amount for the Class X-1
Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest and after any reduction in the
Interest Distributable Amount due to Net Interest Shortfalls on such
Distribution Date) and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund X-1 Subaccount up to an amount equal to the
Basis
Risk Shortfalls for such Distribution Date with respect to the Class 1-A1A,
Class 1-A1B, Class 2-A1A and Class 2-A1C Certificates and the Subordinate
Certificates.
“X-2A1B
Required Reserve Fund Deposit”:
With
respect to the Class X-2A1B Certificates and any Distribution Date, an amount
equal to the lesser of (i) the Interest Distributable Amount for the Class
X-2A1B Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest and after any reduction in the
Interest Distributable Amount due to Net Interest Shortfalls on such
Distribution Date) and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund X-2A1B Subaccount up to an amount equal to the
Basis Risk Shortfalls for such Distribution Date with respect to the Class
2-A1B
Certificates.
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 and the Certificate Insurer all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to (i) each Mortgage Loan
identified on the Mortgage Loan Schedule, including the related Cut-off Date
Principal Balance, all interest due thereon after the Cut-off Date and all
collections in respect of interest and principal due after the Cut-off Date;
(ii) all the Depositor’s right, title and interest in and to the Distribution
Account and all amounts from time to time credited to and the proceeds of the
Distribution Account; (iii) any real property that secured each such Mortgage
Loan and that has been acquired by foreclosure or deed in lieu of foreclosure;
(iv) the Depositor’s interest in any insurance policies in respect of the
Mortgage Loans; (v) all proceeds of any of the foregoing and (vi) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal due to the Depositor after the Cut-off Date with
respect to the Mortgage Loans. In exchange for such transfer and assignment,
the
Depositor shall receive the Certificates.
56
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
Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
In
connection with such transfer and assignment, (i) the Depositor directs the
Trustee to appoint The Bank of New York as Custodian, and (ii) the Seller,
on
behalf of the Depositor, does hereby deliver on the Closing Date, unless
otherwise specified in this Section 2.01 or the BONY Custodial Agreement, to,
and deposit with the Trustee, or the Custodian as its designated agent, the
following documents or instruments with respect to each Mortgage Loan (a
“Mortgage
File”)
so
transferred and assigned:
|
(i)
|
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of U.S. Bank
National Association, as Trustee for HarborView Mortgage Loan Trust
2006-1, Mortgage Loan Pass-Through Certificates, Series 2006-1, without
recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost,
misplaced
or destroyed, together with a copy of the related Mortgage Note;
provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-off
Date Principal Balance of which is less than or equal to 2% of the
Cut-off
Date Collateral Balance;
|
|
(ii)
|
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, and in the case of each MERS Mortgage
Loan,
the original Mortgage, noting the presence of the MIN for that Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan
if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was
not a MOM
Loan at origination, the original Mortgage and the assignment to
MERS, in
each case with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage
or power
of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not
otherwise available, a copy of such Mortgage or power of attorney,
as the
case may be, together with an Officer’s Certificate of the Seller
certifying that the copy of such Mortgage delivered to the Trustee
(or its
Custodian) is a true copy and that the original of such Mortgage
has been
forwarded to the public recording office, or, in the case of a Mortgage
that has been lost, a copy thereof (certified as provided for under
the
laws of the appropriate jurisdiction) and a written Opinion of Counsel
(delivered at the Seller’s expense) acceptable to the Trustee and the
Depositor that an original recorded Mortgage is not required to enforce
the Trustee’s interest in the Mortgage
Loan;
|
57
|
(iii)
|
the
original 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, title company, escrow agent or closing attorney certifying
that
the copy of such assumption, modification or substitution agreement
delivered to the Trustee (or its Custodian) on behalf of the Trust
is a
true copy and that the original of such agreement has been forwarded
to
the public recording office;
|
|
(iv)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment of Mortgage, in form and substance acceptable
for
recording. The Mortgage shall be assigned to “U.S. Bank National
Association, as Trustee for HarborView Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series 2006-1, without
recourse;”
|
|
(v)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening Assignment of Mortgage showing a
complete
chain of assignments, or, in the case of an intervening Assignment
of
Mortgage that has been lost, a written Opinion of Counsel (delivered
at
the Seller’s expense) acceptable to the Trustee that such original
intervening Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage
Loans;
|
|
(vi)
|
the
original Primary Insurance Policy, if any, or certificate, if
any;
|
|
(vii)
|
the
original or a certified copy of lender’s title insurance policy;
and
|
|
(viii)
|
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
|
58
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee, such actions as are
necessary to cause the MERS(R)
System
to indicate that such Mortgage Loans have been assigned by the Seller to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
that
are repurchased in accordance with this Agreement) in such computer files the
information required by the MERS(R) System to identify the series of the
Certificates issued in connection with the transfer of such Mortgage Loans
to
the HarborView Mortgage Loan Trust 2006-1.
With
respect to each Cooperative Loan the Seller, on behalf of the Depositor does
hereby deliver to the Trustee the related Cooperative Loan Documents and the
Seller will take (or cause the Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee, such actions as are
necessary under applicable law (including but not limited to the relevant UCC)
in order to perfect the interest of the Trustee in the related Mortgaged
Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust or the Trustee)
acceptable to the Trustee and each Rating Agency, recording in such states
is
not required to protect the Trustee’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 or Trustee, upon the earliest to occur of (1) reasonable direction by
the
Majority Certificateholders, (2) the occurrence of a bankruptcy or insolvency
relating to the Seller or the Depositor, or (3) with respect to any one
Assignment of Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the Servicer to properly record), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee (or the Custodian on
behalf of the Trustee)), in each public recording office where the related
Mortgages are recorded, each assignment referred to in Section 2.01(v) above
with respect to a Mortgage Loan that is not a MERS Mortgage Loan.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(x) 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.
59
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, in lieu of the Seller delivering the above
documents, the Servicer shall deliver to the Trustee, or to the Custodian on
behalf of the Trustee, prior to the first Distribution Date, an Officer’s
Certificate, which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in
the Distribution Account have been so deposited. All original documents that
are
not delivered to the Trustee on behalf of the Trust shall be held by the
Servicer in trust for the Trustee, for the benefit of the Trust and the
Certificateholders.
All
original documents that are not delivered to the Custodian on behalf of the
Trust shall be held by the Servicer in trust for the Trustee, for the benefit
of
the Trust and the Certificateholders.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
SECTION
2.02. Acceptance
by Trustee.
The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
Custodian on its behalf of the Mortgage Files pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule, subject to review thereof by the Custodian
on behalf of the Trustee and declares that it holds or will hold all other
assets included in the definition of “Trust Fund” in trust for the exclusive use
and benefit of all present and future Certificateholders and the Certificate
Insurer.
The
Trustee (or the Custodian, on behalf of the Trustee) shall 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.
The
Trustee (or the Custodian on behalf of the Trustee) shall, for the benefit
of
the Certificateholders and the Certificate Insurer, review each Mortgage File
delivered to it and to certify and deliver to the Depositor, the Seller and
each
Rating Agency an interim certification in substantially the form attached hereto
as Exhibit G-2, within 90 days after the Closing Date (or, with respect to
any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within five Business Days after
the assignment thereof) that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (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.
60
No
later
than 180 days after the Closing 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 evidencing the completeness of the
Mortgage Files, with any applicable exceptions noted thereon.
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 or the Certificate
Insurer 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.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originator and the
Seller.
(a) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Originator of any representation, warranty or covenant under the 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
or
the Certificate Insurer, the Trustee 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,
and
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 enforce
the Originator’s obligation under the Purchase Agreement and cause the
Originator to repurchase that Mortgage Loan from the Trust Fund at the
Repurchase Price (as defined in the Purchase Agreement) on or prior to the
Determination Date following the expiration of such 90 day period. It is
understood and agreed that the obligation of the 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 on behalf of the
Certificateholders.
61
(b) Upon
discovery or receipt of written notice 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 or the Certificate Insurer, the
Trustee (or the Custodian on behalf of the Trustee) shall promptly notify the
Seller of such breach and request that the Seller cure such breach within 90
days from the date that the Seller was notified of such breach, and if the
Seller does not cure such breach in all material respects during such period,
the Trustee shall enforce the Seller’s obligation under the Mortgage Loan
Purchase Agreement and cause the Seller to repurchase that Mortgage Loan from
the Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such 90 day period (subject to Section 2.03(e)
below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Section 2.04 hereof, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans for the Purchase Price or, if
the
Mortgage Loan or the related Mortgaged Property acquired with respect thereto
has been sold, then the Seller shall pay, in lieu of the Purchase Price, any
excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale.
(c) The
Purchase Price or Repurchase Price (as defined in the Servicing 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 Originator’s or Seller’s obligation to
repurchase such Mortgage Loan arises. Upon receipt of the related deposit in
the
Distribution Account, the Trustee shall cause the Custodian to release to the
Originator or Seller, as applicable, the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as the Originator or Seller, as
applicable, shall furnish to it and as shall be necessary to vest in the
Originator or Seller, 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 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(d) below. It is understood
and agreed that the obligation of the Seller to cure or to repurchase or to
substitute for (or, with respect to any costs and damages incurred by the Trust
Fund in connection with any violation of any anti-predatory or anti-abusive
lending laws, indemnify for) any Mortgage Loan as to which a document is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy against
the Seller respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders.
62
(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 or the Certificate Insurer, 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.
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of a breach of a representation, warranty
or covenant as described in this Section 2.03(d) and its obligation to indemnify
the Trust Fund with respect to any such breach.
(e) If
pursuant to the provisions of Section 2.03(b), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall take (or shall cause the Servicer to take), at the
expense of the Seller (with the cooperation of the Depositor and the Trustee),
such actions as are necessary either (i) cause MERS to execute and deliver
an
Assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Seller and shall cause such Mortgage to be removed from registration on
the
MERS(R)
System
in accordance with MERS’ rules and regulations or (ii) cause MERS to designate
on the MERS(R)
System
the Seller or its designee as the beneficial holder of such Mortgage
Loan.
(f) [Reserved]
(g) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Loans, such substitution shall be effected by the Seller delivering
to
the Custodian, on behalf of the Trustee, for such Qualified Substitute Mortgage
Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee,
and such other documents and agreements, with all necessary endorsements
thereon, as are required by Section 2.01 hereof, together with an Officers’
Certificate stating that each such Qualified Substitute Mortgage Loan satisfies
the definition thereof and specifying the Substitution Adjustment (as described
below), if any, in connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Custodian, on behalf of the Trustee, shall acknowledge receipt
for such Qualified Substitute Mortgage Loan or Loans and, within five Business
Days thereafter, shall review such documents as specified in Section 2.02 hereof
and deliver to the Servicer, with respect to such Qualified Substitute Mortgage
Loan or Loans, a certification substantially in the form attached hereto as
Exhibit G-2, with any exceptions noted thereon. Within 180 days of the date
of
substitution, the Custodian, on behalf of the Trustee, shall deliver to the
Seller a certification substantially in the form of Exhibit G-3 hereto with
respect to such Qualified Substitute Mortgage Loan or Loans, with any exceptions
noted thereon. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution are not part of the Trust Fund
and
will be retained by the Seller. For the month of substitution, distributions
to
Certificateholders will reflect the collections and recoveries in respect of
such Deleted Mortgage Loan in the Due Period preceding the month of substitution
and the Depositor or the Seller, as the case may be, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Seller shall give or cause to be given written notice to
the
Certificateholders that such substitution has taken place, shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Trust Fund and shall be
subject in all respects to the terms of this Agreement and, in the case of
a
substitution effected by the Seller, the Mortgage Loan Purchase Agreement,
including, in the case of a substitution effected by the Seller all
representations and warranties thereof included in the Mortgage Loan Purchase
Agreement and all representations and warranties thereof set forth in Section
2.04 hereof, in each case as of the date of substitution.
63
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Trustee for deposit in the Distribution Account
an
amount equal to the related Substitution Adjustment, if any, and the Custodian,
on behalf of the Trustee, upon receipt of the related Qualified Substitute
Mortgage Loan or Loans, shall release to the Seller the related Mortgage File
or
Files and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as the Seller shall deliver to it and as shall
be
necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC Event. If such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
64
(h) Upon
discovery by the Seller, the Depositor or the Trustee that any Mortgage Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set forth
in Section 2.03(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 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 or the Certificate Insurer, the Trustee shall first request
that the Originator cure such breach or repurchase such Mortgage Loan and if
the
Originator fails to cure such breach or repurchase such Mortgage Loan within
60
days of receipt of such request from the Trustee, the Trustee shall then request
that the Seller cure such breach or repurchase such Mortgage Loans.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans.
The
Seller hereby makes the following representations and warranties to the Trustee
on behalf of the Certificateholders and the Certificate Insurer as of the
Closing Date with respect to the Mortgage Loans:
(i) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to, all
applicable predatory and abusive lending laws.
(ii) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, (as such
terms are defined in the then current Standard & Poor’s LEVELS(R)
Glossary, Appendix E, in effect as of the Closing Date) and
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 Purchase Agreement that is made as of the related
Closing Date (as defined in the Purchase Agreement), to the best of the Seller’s
knowledge, no event has occurred since the related Closing Date (as defined
in
the Purchase Agreement) that would render such representations and warranties
to
be untrue in any material respect as of the Closing Date; and
65
(iv) Each
Group 1 Mortgage Loan has an original principal balance that conforms to Xxxxxxx
Mac and Xxxxxx Mae 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 Certificate
Insurer 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 or
the
Certificate Insurer 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 in this Section
2.04 shall survive delivery of the Mortgage Files to the Trustee and shall
inure
to the benefit of the Certificateholders and the Certificate Insurer
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Seller, the Certificate Insurer 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 or the Certificate Insurer, the party
discovering such breach shall give prompt written notice to the other parties,
and in no event later than two Business Days from the date of such discovery.
It
is understood and agreed that the obligations of the Seller set forth in Section
2.03(b) hereof to cure, substitute for or repurchase (or, with respect to any
costs and damages incurred by the trust fund in connection with any violation
of
any anti-predatory or anti-abusive lending laws, indemnify for) a related
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the
sole remedies available to the Certificateholders or to the Trustee on their
behalf respecting a breach of the representations and warranties incorporated
in
this Section 2.04.
SECTION
2.05. [Reserved]
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trustee on behalf of the
Certificateholders and the Certificate Insurer 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 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;
66
(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;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
67
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it or to the Custodian of the Mortgage Files, subject to the provisions
of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations. The interests evidenced by the Certificates constitute the entire
beneficial ownership interest in the Trust Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trustee on behalf of the
Certificateholders and the Certificate Insurer 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.
68
(iii) The
Seller holds all necessary licenses, certificates and permits from all
governmental authorities necessary for conducting its business as it is
currently conducted. It is not required to obtain the consent of any other
party
or any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations,
or
registrations or declarations as shall have been obtained or filed, as the
case
may be, prior to the Closing Date.
(iv) The
execution, delivery and performance of this Agreement by the Seller will not
conflict with or result in a breach of, or constitute a default under, any
provision of any existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision of its
articles of incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any of its properties pursuant to any mortgage, indenture, contract or
other agreement to which it is a party or by which it may be bound.
(v) No
certificate of an officer, written statement or written report delivered
pursuant to the terms hereof of the Seller contains any untrue statement of
a
material fact or omits to state any material fact necessary to make the
certificate, statement or report not misleading.
(vi) The
transactions contemplated by this Agreement are in the ordinary course of the
Seller’s business.
(vii) The
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans to the Depositor, nor is the Seller aware of any pending
insolvency of the Seller.
(viii) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court, or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would materially and
adversely affect the Seller’s financial condition (financial or otherwise) or
operations, or materially and adversely affect the performance of any of its
duties hereunder.
(ix) There
are
no actions or proceedings against the Seller, or pending or, to its knowledge,
threatened, before any court, administrative agency or other tribunal; nor,
to
the Seller’s knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to perform any of its
respective obligations under, or the validity or enforceability of, this
Agreement.
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(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor and
the Certificate Insurer, 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.
ARTICLE
III
ADMINISTRATION
OF
THE MORTGAGE LOANS
SECTION
3.01. Servicing
of the Mortgage Loans.
The
Servicer will service the Mortgage Loans pursuant to the terms of the Servicing
Agreement. The Trustee shall enforce the provisions of the Servicing Agreement
in respect of the Servicer (including any reference to any obligation of the
Servicer in this Agreement that is incorporated into or by which the Servicer
is
bound under the Servicing Agreement).
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as any REMIC created hereunder shall exist, the Trustee shall act in
accordance herewith to assure continuing treatment of such REMIC as a REMIC,
and
the Trustee shall comply with any directions of the Depositor or the Servicer
to
assure such continuing treatment. In particular, the Trustee shall not (a)
sell
or 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 pursuant to this Agreement or the Trustee
has
received a REMIC Opinion prepared at the expense of the Trust; and (b) other
than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
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SECTION
3.03. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the Servicing Agreement,
promptly furnish to the Custodian, on behalf of the Trustee, two copies of
a
certification substantially in the form of Exhibit F hereto signed by a
Servicing Officer or in a mutually agreeable electronic format which will,
in
lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Servicing Account maintained by the Servicer 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 shall cause the Custodian
to 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
(in
form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Trustee shall cause the Custodian,
upon
the request of the Servicer, and upon delivery to the Trustee (or the Custodian,
on behalf of the Trustee) of two copies of a request for release signed by
a
Servicing Officer substantially in the form of Exhibit F (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in
its possession or control to the Servicer. Such trust receipt shall obligate
the
Servicer to return the Mortgage File to the Custodian when the need therefor
by
the Servicer no longer exists unless the Mortgage Loan shall be liquidated,
in
which case, upon receipt of a certificate of a Servicing Officer similar to
that
hereinabove specified, the Mortgage File shall be released by the Custodian,
to
the Servicer.
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SECTION
3.04. REO
Property.
(a) In
the
event the Trust (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, or if required under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust.
The
Servicer shall, to the extent provided in the Servicing Agreement, 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 Servicer shall 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.
(b) The
Servicer shall, to the extent required by the Servicing Agreement, deposit
all
funds collected and received in connection with the operation of any REO
Property in the Servicing Account.
(c) 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 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 Trustee for
deposit into the Distribution Account on the next succeeding Servicer Remittance
Date.
SECTION
3.05. Reports
Filed with Securities and Exchange Commission.
(a) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. The Trustee will prepare and file Current Reports on Form 8-K in
respect of the Trust at the direction and expense of the Depositor, provided
that, the Depositor, the Seller or the Servicer shall have timely notified
the
Trustee of an item reportable on Form 8-K (unless such item is specific to
the
Trustee, in which case the Trustee will be deemed to have notice) and shall
have
delivered to the Trustee not later than three (3) Business Days prior to the
filing deadline for such Form 8-K, all information, signatures, data and
exhibits required to be provided or filed with such Form 8-K. The Trustee shall
not be responsible for determining what information is required to be filed
on a
Form 8-K in connection with the transactions contemplated by this Agreement
(unless such event is specific to the Trustee, in which case the Trustee will
be
responsible for causing such Form 8-K to be filed) and shall not be liable
for
any late filing of a Form 8-K in the event that it does not receive all
information, data, signatures and exhibits required to be provided or filed
on
or prior to the third Business Day prior to the applicable filing deadline.
(b) Within
10
days (or, if applicable, within such shorter period of time as is required
under
the rules of the Commission as in effect from time to time (the “Rules”))
following each Distribution Date, the Trustee shall, in accordance with industry
standards and the Rules, prepare and file with the Commission via the Electronic
Data Gathering and Retrieval System (“XXXXX”)
a Form
10-D that includes (i) a Distribution Date Statement, (ii) such other
information provided to the Trustee as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 of Regulation AB and
(iii)
such other information required to be included on Form 10-D furnished to the
Trustee by the Depositor or any other party , provided
that
such information is furnished to the Trustee no later than three (3) Business
Days prior to the date on which the such Form 10-D is required to be filed
(the
related “Filing Date”) pursuant to the Rules. The Trustee shall have no
responsibility for determining what information is required to be filed on
Form
10-D (unless such information is specific to the Trustee, in which case the
Trustee will be responsible for making such determination) nor for including
any
information in such Form 10-D that is not furnished to the Trustee no later
than
three (3) Business Days prior to the Filing Date.
72
(c) No
later
than January 30, 2007, the Trustee shall, in accordance with industry standards,
file a Form 15 Suspension Notice with respect to the Trust, if applicable.
(d) Prior
to
(i) March 30, 2007, or such earlier date as such filing may be required to
be
made under the rules of the Commission and (ii) unless and until a Form 15
Suspension Notice shall have been filed, March 30, or such earlier date as
such
filing may be required to be made under the rules of the Commission, of each
year thereafter, the Trustee shall file a Form 10-K, in substance conforming
to
industry standards, with respect to the Trust. Such Form 10-K shall include
(w)
the Xxxxxxxx-Xxxxx Certification and any other documentation provided by the
Servicer pursuant to the Servicing Agreement which is required to be filed
with
such Form 10-K, to the extent they have been timely delivered to the Trustee
and
the Depositor, (x) the annual certifications and assessments of compliance
delivered by the Trustee, the Servicer and the Custodian, or any Subservicer
or
Subcontractor thereof, pursuant to this Agreement, the Servicing Agreement
and
the Custodial Agreement, (y) the related public accounting firm attestation
reports and (z) such other information as is required by the Rules and
Regulation AB. The Trustee shall not be responsible for determining what
information is required to be filed on a Form 10-K in connection with the
transactions contemplated by this Agreement and shall not be liable for the
late
filing of a Form 10-K or for the expenses for filing an amendment to a Form
10-K
in the event that it does not receive (i) the documents required to be delivered
to it in accordance with clauses (x)-(z) above or (ii) an executed copy of
the
Form 10-K from the Depositor within the time period described herein. In the
event that the Trustee is unable to include any report required by either clause
(x) or (y) in the immediately preceding sentence in the Form 10-K, the Trustee
shall disclose such fact in the Form 10-K together with an explanation as to
why
such report is not included as an exhibit to the Form 10-K.
(e) The
Trustee shall promptly send copies of each periodic report filed on Form 10-D
or
other applicable form, each annual report on Form 10-K, and each Form 15
Suspension Notification, together in each case with the acceptance confirmation
receipt from XXXXX, to the Certificate Insurer, to XxXxx Xxxxxx LLP and to
the
Depositor (i) by e-mail to the e-mail addresses provided in writing by each
of
XxXxx Xxxxxx LLP and the Depositor, respectively and (ii) to XxXxx Xxxxxx LLP
at
0000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, and to the Depositor at the address
specified in Section 12.05, in each case to the attention of a designated
contact specified by each of XxXxx Xxxxxx LLP and the Depositor, respectively.
Notwithstanding any term to the contrary, an appropriate officer of the
Depositor shall be responsible for signing, and shall sign, any such Form 10-K
and the related Xxxxxxxx-Xxxxx Certification that may be required to be filed
with the Commission in connection therewith. The Trustee shall prepare such
Form
10-K and provide the Depositor with such Form 10-K not later than March
20th
of the
applicable year. Following its receipt thereof, the Depositor shall execute
such
Form 10-K and all related certifications to be signed by it and provide the
original of such Form 10-K and all related certifications to the Trustee not
later than March 25th
of that
year (or if March 25th
is not a
Business Day, then the next succeeding Business Day); provided,
however,
that if
the filing of such Form 10-K shall be required to occur on a date earlier than
March 30th
of the
applicable year as may be required by the Exchange Act, and Rules and
Regulations of the Commission, then the time periods for preparation and
execution of such Form 10-K set forth in this section shall be adjusted
accordingly. The Depositor agrees to promptly furnish to the Trustee, from
time
to time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trustee reasonably deems appropriate to prepare and file all necessary reports
with the Commission. The Trustee shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee’s inability or failure to obtain any information not
resulting from the Trustee’s own negligence or willful misconduct. The Trustee
shall have no responsibility to execute any Form 15 Suspension Notice, Form
8-K,
Form 10-D or Form 10-K described herein or to execute any Depositor
Certification described herein, or to file any items other than those specified
in this Section 3.05; provided,
however,
the
Trustee will cooperate with the Depositor in connection with any additional
filings with respect to the Trust as the Depositor deems necessary under the
Exchange Act. Copies of all reports filed by the Trustee under Regulation AB,
the Exchange Act or otherwise shall be sent to the Depositor. Fees and expenses
incurred by the Trustee in connection with this Section 3.05 shall not be
reimbursable from the Trust.
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(f) Not
later
than March 15 of each year (beginning in 2007) (or, if such day is not a
Business Day, the immediately preceding Business Day), the Trustee shall sign
the Trustee Certification for the benefit of the Depositor and its officers,
directors and affiliates.
SECTION
3.06. [Reserved]
SECTION
3.07. Indemnification
by the Trustee.
(a) The
Trustee agrees to indemnify the Depositor, its officers, directors, agents
and
employees for, and to hold them harmless against, any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part (i) in connection with, arising
out of, or relating to the Trustee’s failure to file a Form 8-K, Form 10-D or
Form 10-K in accordance with Section 3.05 or any failure by the Trustee to
deliver any information, report or certification, when and as required under
Section 8.01(b) or (e), (ii) by reason of the Trustee’s willful misfeasance, bad
faith or negligence in the performance of such obligations pursuant to Section
3.05, (iii) by reason of the Trustee’s reckless disregard of such obligations
pursuant to Section 3.05 or (iv) any material misstatement or omission made
in
the Trustee Certification; provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), such indemnified Person shall have given
the
Trustee written notice thereof promptly after such indemnified Person shall
have
with respect to such claim or legal action knowledge thereof; provided,
however,
that
such agreement by the Trustee to indemnify and hold harmless such Person shall
not include or apply to any such losses, damages, penalties, fines, forfeitures,
legal fees or expenses or related costs, judgments, or any other costs, fees
or
expenses arising from, caused by or resulting from the actions or omissions
of
any Person other than the Trustee, including without limitation the negligence,
willful misfeasance, bad faith or reckless disregard of duties or obligations
under or pursuant to this Agreement, the Servicing Agreement or other applicable
agreement by the Depositor or the Servicer, including without limitation any
erroneous, inaccurate or incomplete information or certification provided to
the
Trustee by the Depositor or the Servicer in connection with, or any failure
or
delay on the part of the Depositor or the Servicer to provide any information
or
certification necessary to, the Trustee’s performance under Section 3.05. If the
indemnification provided for in this Section 3.07 is unavailable or insufficient
to hold harmless such indemnified Persons, then the Trustee shall contribute
to
the amount paid or payable by such indemnified Persons as a result of the
losses, claims, damages or liabilities of such indemnified Persons in such
proportion as is appropriate to reflect the relative fault of the Depositor
on
the one hand and the Trustee on the other. This indemnity shall survive the
resignation or removal of the Trustee and the termination of this Agreement.
Notwithstanding the foregoing, in no event shall the Trustee be liable for
any
consequential, indirect or punitive damages.
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(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise referred to in Subsection (a)
above.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts
(a) The
Servicer will 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, Insurance Proceeds, Liquidation Proceeds, Recoveries
and
advances made from the Servicer’s own funds (less, in the case of the Servicer,
the Servicing compensation, in whatever form and amounts as permitted by the
Servicing Agreement) and all other amounts to be deposited in the 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.
75
(b) [Reserved];
(c) To
the
extent provided in the Servicing Agreement and subject to this Article IV,
on or
before each Servicer Remittance Date, the Servicer shall withdraw or shall
cause
to be withdrawn from the related Servicing Account and shall immediately remit
or cause to be remitted to the Trustee for deposit into the Distribution
Account, amounts representing the following collections and payments (other
than
with respect to principal of or interest on the Mortgage Loans due on or before
the 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;
(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;
(iii) Principal
Prepayments in part received by the Servicer for such Mortgage Loans in the
related Prepayment Period;
(iv) Recoveries
received by the Servicer with respect to such Mortgage Loans; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided in
Section 4.01(c), to reimburse the Servicer for advances which have been
recovered by subsequent collection from the related Mortgagor, to remove amounts
deposited in error, to remove fees, charges or other such amounts deposited
on a
temporary basis, or to clear and terminate the account at the termination of
this Agreement in accordance with Section 10.01. As provided in Section 4.01(c),
certain amounts otherwise due to the Servicer may be retained by them and need
not be remitted to the Trustee.
SECTION
4.02. Distribution
Account.
(a) The
Trustee shall establish and maintain an account, for the benefit of the
Certificateholders and the Certificate Insurer, as a segregated account which
shall be an Eligible Account (the “Distribution
Account”).
The
Trustee shall, promptly upon receipt from the Servicer on the Servicer
Remittance Date deposit into the Distribution Account and retain on deposit
until the related Distribution Date, the following amounts:
76
(i) any
amounts withdrawn from a Servicing Account pursuant to Section
4.01(c);
(ii) any
amounts required to be deposited by the Trustee with respect to the Mortgage
Loans pursuant to this Agreement;
(iii) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller or
the
Originator under this Agreement or the Purchase Agreement, as applicable, any
Substitution Adjustments pursuant to Section 2.03 of this Agreement and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Servicer pursuant to Section 10.01 and the Servicing
Agreement;
(iv) any
amounts required to be deposited by the Trustee with respect to losses on
investments of deposits in the Distribution Account; and
(v) any
other
amounts so required to be deposited in the Distribution Account pursuant to
this
Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Trustee
in
trust for the benefit of the Certificateholders and the Certificate Insurer
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), (x) and (xi) with respect to the
Servicer, need not be remitted by the Servicer to the Trustee. In the event
that
the Servicer has remitted to the Trustee any amount not required to be credited
to the Distribution Account, the Servicer may at any time, by delivery of a
written request signed by a Servicing Officer of the deposited in error, direct
the Trustee to withdraw such amount from the Distribution Account for repayment
to the Servicer. In the event that the Trustee has deposited to the Distribution
Account any amount not required to be credited thereto, it may at any time,
withdraw such amount from the Distribution Account.
(c) Funds
in
the Distribution Account shall, if invested, be invested in Permitted
Investments; provided,
however,
that
the Trustee shall be under no obligation or duty to invest (or otherwise pay
interest on) amounts held in the Distribution Account. All Permitted Investments
shall mature or be subject to redemption or withdrawal no later than one
Business Day prior to the next succeeding Distribution Date (except that if
such
Permitted Investment is an obligation of the Trustee, then such Permitted
Investment shall mature not later than such applicable Distribution Date).
Any
and all investment earnings from any such Permitted Investment shall be for
the
benefit of the Trustee and shall be subject to its withdrawal or order from
time
to time, and shall not be part of the Trust Fund. The risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the Trustee. The Trustee shall
deposit the amount of any such loss in the Distribution Account immediately
as
realized, but in no event later than the related Distribution Date.
77
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Trustee shall, from time to time, withdraw or transfer funds from the
Distribution Account to the Servicer, to the Certificate Insurer or to itself
for the following purposes:
(i) to
reimburse the Servicer for any Advance of its own funds, the right of the
Servicer to reimbursement pursuant to this subclause (i) being limited to
amounts received on a particular Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds, Liquidation Proceeds and the
Termination Price) which represent late payments or recoveries of the principal
of or interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Servicer from Insurance Proceeds or Liquidation Proceeds relating
to a particular Mortgage Loan for amounts expended by the Servicer in good
faith
in connection with the restoration of the related Mortgaged Property which
was
damaged by an Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(iii) to
reimburse the Servicer from Insurance Proceeds relating to a particular Mortgage
Loan for insured expenses incurred with respect to such Mortgage Loan and to
reimburse the Servicer from Liquidation Proceeds from a particular Mortgage
Loan
for Liquidation Expenses incurred with respect to such Mortgage Loan;
(iv) to
pay
the Servicer, as appropriate, from Liquidation Proceeds or Insurance Proceeds
received in connection with the liquidation of any Mortgage Loan, the amount
which the Servicer would have been entitled to receive under subclause (xii)
of
this Subsection 4.03(a) as servicing compensation on account of each defaulted
scheduled payment on such Mortgage Loan if paid in a timely manner by the
related Mortgagor;
(v) to
pay
the Servicer from the Purchase Price for any Mortgage Loan, the amount which
the
Servicer would have been entitled to receive under subclause (xii) of this
Subsection 4.03(a) as servicing compensation;
(vi) to
reimburse the Servicer for servicing related advances of funds, the right to
reimbursement pursuant to this subclause being limited to amounts received
on
the related Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
recoveries of the payments for which such servicing advances were
made;
(vii) to
reimburse the Servicer for any Advance after a Realized Loss has been allocated
with respect to the related Mortgage Loan if the Advance has not been reimbursed
pursuant to clauses (i) and (vi);
(viii) to
pay
the Servicer its monthly Servicing Fee and any other servicing compensation
payable pursuant to the Servicing Agreement;
(ix) to
pay
the Trustee any investment income;
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(x) [reserved];
(xi) to
reimburse or pay the Servicer any such amounts as are due thereto under the
Servicing Agreement and have not been retained by or paid to the Servicer,
to
the extent provided in the Servicing Agreement;
(xii) to
reimburse the Trustee for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to Sections 7.02(d), 8.05, 8.10 or 8.17 (including
those related the BONY Custodial Agreement, to pay any fees, expenses or other
amounts payable to the Bank of New York as Custodian);
(xiii) to
pay
the Certificate Insurer its Aggregate Premium Amount;
(xiv) to
remove
amounts deposited in error; and
(xv) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) The
Trustee shall keep and maintain separate accounting, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (vii), inclusive and subclause (x) or with
respect to any such amounts which would have been covered by such subclauses
had
the amounts not been retained by the Trustee without being deposited in the
Distribution Account under Section 4.02(b).