GREENWICH CAPITAL ACCEPTANCE, INC., Depositor GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., Seller WELLS FARGO BANK, N.A. Master Servicer and Securities Administrator CLAYTON FIXED INCOME SERVICES INC., Credit Risk Manager and DEUTSCHE BANK NATIONAL...
EXECUTION
GREENWICH
CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
Seller
XXXXX
FARGO BANK, N.A.
Master
Servicer and Securities Administrator
XXXXXXX
FIXED INCOME SERVICES INC.,
Credit
Risk Manager
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
Trustee
and Custodian
Dated
as
of November 1, 2006
__________________________________
HarborView
Mortgage Loan Trust
Mortgage
Loan Pass-Through Certificates, Series 2006-13
Table
of Contents
Page
|
Section
1.01.
|
Defined
Terms.
|
4
|
|
Section
1.02.
|
Accounting.
|
41
|
|
ARTICLE
II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
|
42
|
|
|
Section
2.01.
|
Conveyance
of Mortgage Loans.
|
42
|
|
Section
2.02.
|
Acceptance
by Trustee.
|
46
|
|
Section
2.03.
|
Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
|
47
|
|
Section
2.04.
|
Representations
and Warranties of the Seller with Respect to the Mortgage
Loans.
|
51
|
|
Section
2.05.
|
[Reserved].
|
52
|
|
Section
2.06.
|
Representations
and Warranties of the Depositor.
|
52
|
|
Section
2.07.
|
Issuance
of Certificates.
|
54
|
|
Section
2.08.
|
Representations
and Warranties of the Seller.
|
54
|
|
Section
2.09.
|
Covenants
of the Seller.
|
56
|
|
ARTICLE
III ADMINISTRATION AND MASTER SERVICING OF
THE MORTGAGE LOANS; CREDIT RISK MANAGER
|
56
|
|
|
Section
3.01.
|
Master
Servicer to Service and Administer the Mortgage Loans.
|
56
|
|
Section
3.02.
|
REMIC-Related
Covenants.
|
58
|
|
Section
3.03.
|
Monitoring
of Servicers.
|
58
|
|
Section
3.04.
|
Fidelity
Bond.
|
59
|
|
Section
3.05.
|
Power
to Act; Procedures.
|
60
|
|
Section
3.06.
|
Due-on-Sale
Clauses; Assumption Agreements.
|
61
|
|
Section
3.07.
|
Release
of Mortgage Files.
|
61
|
|
Section
3.08.
|
Documents,
Records and Funds in Possession of Master Servicer to be Held for
Trust
Fund.
|
62
|
|
Section
3.09.
|
Standard
Hazard Insurance and Flood Insurance Policies
|
63
|
|
Section
3.10.
|
Presentment
of Claims and Collection of Proceeds.
|
63
|
|
Section
3.11.
|
Maintenance
of the Primary Insurance Policies.
|
64
|
|
Section
3.12.
|
Trustee
to Retain Possession of Certain Insurance Policies and
Documents.
|
64
|
|
Section
3.13.
|
Realization
Upon Defaulted Mortgage Loans.
|
65
|
|
Section
3.14.
|
Additional
Compensation to the Master Servicer.
|
65
|
|
Section
3.15.
|
REO
Property.
|
65
|
|
Section
3.16.
|
Assessments
of Compliance and Attestation Reports.
|
66
|
|
Section
3.17.
|
Annual
Compliance Statement.
|
68
|
|
Section
3.18.
|
Xxxxxxxx-Xxxxx
Certification.
|
69
|
|
Section
3.19.
|
Reports
Filed with Securities and Exchange Commission.
|
69
|
|
Section
3.20.
|
Additional
Information.
|
75
|
|
Section
3.21.
|
Intention
of the Parties and Interpretation.
|
75
|
|
Section
3.22.
|
Indemnification.
|
76
|
|
Section
3.23.
|
[Reserved].
|
77
|
|
Section
3.24.
|
Closing
Opinion of Counsel.
|
77
|
|
Section
3.25.
|
[Reserved].
|
77
|
|
Section
3.26.
|
Merger
or Consolidation of the Master Servicer.
|
77
|
|
Section
3.27.
|
Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
|
77
|
|
Section
3.28.
|
Limitations
on Liability of the Master Servicer and Others; Indemnification
of Trustee
and Others.
|
78
|
|
Section
3.29.
|
Master
Servicer Not to Resign.
|
79
|
|
Section
3.30.
|
Successor
Master Servicer.
|
80
|
|
Section
3.31.
|
Sale
and Assignment of Master Servicing.
|
80
|
|
Section
3.32.
|
Reporting
Requirements of the Commission
|
81
|
|
Section
3.33.
|
Duties
of the Credit Risk Manager.
|
81
|
|
Section
3.34.
|
Limitation
Upon Liability of the Credit Risk Manager.
|
82
|
|
Section
3.35.
|
Indemnification
by the Credit Risk Manager.
|
83
|
|
Section
3.36.
|
Removal
of Credit Risk Manager.
|
83
|
|
ARTICLE
IV ACCOUNTS
|
83
|
|
|
Section
4.01.
|
Servicing
Accounts
|
83
|
|
Section
4.02.
|
Distribution
Account.
|
85
|
|
Section
4.03.
|
Permitted
Withdrawals and Transfers from the Distribution
Account.
|
86
|
|
Section
4.04.
|
Yield
Maintenance Account; Collateral Account.
|
89
|
|
ARTICLE
V FLOW OF FUNDS
|
91
|
|
|
Section
5.01.
|
Distributions.
|
91
|
|
Section
5.02.
|
[Reserved].
|
94
|
|
Section
5.03.
|
Allocation
of Realized Losses.
|
94
|
|
Section
5.04.
|
Statements.
|
95
|
|
Section
5.05.
|
Remittance
Reports; Advances.
|
98
|
|
Section
5.06.
|
Compensating
Interest Payments.
|
99
|
|
Section
5.07.
|
Basis
Risk Reserve Fund.
|
99
|
|
Section
5.08.
|
Recoveries.
|
100
|
|
Section
5.09.
|
Final
Maturity Reserve Trust.
|
100
|
|
ARTICLE
VI THE CERTIFICATES
|
101
|
|
|
Section
6.01.
|
The
Certificates.
|
101
|
|
Section
6.02.
|
Registration
of Transfer and Exchange of Certificates.
|
103
|
|
Section
6.03.
|
Mutilated,
Destroyed, Lost or Stolen Certificates.
|
112
|
|
Section
6.04.
|
Persons
Deemed Owners.
|
112
|
|
Section
6.05.
|
Appointment
of Paying Agent.
|
112
|
|
ARTICLE
VII DEFAULT
|
113
|
|
|
Section
7.01.
|
Events
of Default.
|
113
|
|
Section
7.02.
|
Trustee
to Act.
|
115
|
|
Section
7.03.
|
Waiver
of Event of Default.
|
116
|
|
Section
7.04.
|
Notification
to Certificateholders.
|
117
|
|
ARTICLE
VIII THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
|
117
|
|
|
Section
8.01.
|
Duties
of the Trustee and the Securities Administrator.
|
117
|
|
Section
8.02.
|
Certain
Matters Affecting the Trustee and the Securities
Administrator.
|
119
|
|
Section
8.03.
|
Trustee
and Securities Administrator Not Liable for Certificates or Mortgage
Loans.
|
120
|
|
Section
8.04.
|
Trustee,
Custodian, Master Servicer and Securities Administrator May Own
Certificates.
|
122
|
|
Section
8.05.
|
Trustee’s
and Securities Administrator’s Fees and Expenses.
|
122
|
|
Section
8.06.
|
Eligibility
Requirements for Trustee and Securities Administrator.
|
122
|
|
Section
8.07.
|
Resignation
or Removal of Trustee and Securities Administrator.
|
123
|
|
Section
8.08.
|
Successor
Trustee and Successor Securities Administrator.
|
124
|
|
Section
8.09.
|
Merger
or Consolidation of Trustee or Securities
Administrator.
|
125
|
|
Section
8.10.
|
Appointment
of Co-Trustee or Separate Trustee.
|
125
|
|
Section
8.11.
|
Limitation
of Liability.
|
126
|
|
Section
8.12.
|
Trustee
May Enforce Claims Without Possession of Certificates.
|
126
|
|
Section
8.13.
|
Suits
for Enforcement.
|
127
|
|
Section
8.14.
|
Waiver
of Bond Requirement.
|
127
|
|
Section
8.15.
|
Waiver
of Inventory, Accounting and Appraisal Requirement.
|
127
|
|
Section
8.16.
|
Appointment
of Custodians.
|
128
|
|
Section
8.17.
|
Limitation
of Liability of Trustee and Administrator;
Indemnification.
|
128
|
|
ARTICLE
IX REMIC ADMINISTRATION
|
128
|
|
|
Section
9.01.
|
REMIC
Administration.
|
128
|
|
Section
9.02.
|
Prohibited
Transactions and Activities.
|
131
|
|
ARTICLE
X TERMINATION
|
132
|
|
|
Section
10.01.
|
Termination.
|
132
|
|
Section
10.02.
|
Additional
Termination Requirements.
|
134
|
|
ARTICLE
XI DISPOSITION OF TRUST FUND ASSETS
|
134
|
|
|
Section
11.01.
|
Disposition
of Trust Fund Assets.
|
134
|
|
ARTICLE
XII MISCELLANEOUS PROVISIONS
|
135
|
|
|
Section
12.01.
|
Amendment.
|
135
|
|
Section
12.02.
|
Recordation
of Agreement; Counterparts.
|
136
|
|
Section
12.03.
|
Limitation
on Rights of Certificateholders.
|
136
|
|
Section
12.04.
|
Governing
Law; Jurisdiction.
|
137
|
|
Section
12.05.
|
Notices.
|
137
|
|
Section
12.06.
|
Severability
of Provisions.
|
138
|
|
Section
12.07.
|
Article
and Section References.
|
138
|
|
Section
12.08.
|
Notices
to the Rating Agencies.
|
139
|
|
Section
12.09.
|
Further
Assurances.
|
140
|
|
Section
12.10.
|
Benefits
of Agreement.
|
140
|
|
Section
12.11.
|
Acts
of Certificateholders.
|
140
|
|
Section
12.12.
|
Successors
and Assigns.
|
141
|
|
Section
12.13.
|
Provision
of Information.
|
141
|
|
EXHIBITS
AND SCHEDULES:
|
||
|
Exhibit
A-1
|
Form
of A Certificate
|
X-0
|
|
Xxxxxxx
X-0
|
Form
of Class X Certificate
|
A-2
|
|
Exhibit
B
|
Form
of Class A-R Certificate
|
B-1
|
|
Exhibit
C
|
Form
of Subordinate Certificate
|
C-1
|
|
Exhibit
D
|
Form
of Class P Certificate
|
D-1
|
|
Exhibit
E
|
Form
of Reverse of the Certificates
|
E-1
|
|
Exhibit
F
|
Request
for Release
|
F-1
|
|
Exhibit
G-1
|
Form
of Receipt of Mortgage Note
|
G-1-1
|
|
Exhibit
G-2
|
Form
of Interim Certification of Trustee
|
G-2-1
|
|
Exhibit
G-3
|
Form
of Final Certification of Trustee
|
G-3-1
|
|
Exhibit
H
|
Form
of Lost Note Affidavit
|
H-1
|
|
Exhibit
I-1
|
Form
of ERISA Representation Class A-R
|
I-1-1
|
|
Exhibit
I-2
|
Form
of ERISA Representation For ERISA-Restricted Certificates
|
I-2-1
|
|
Exhibit
J-1
|
Form
of Investment Letter Non-Rule 000X
|
X-0-0
|
|
Xxxxxxx
X-0
|
Form
of Rule 144A Investment Letter
|
J-2-1
|
|
Exhibit
K
|
Form
of Transferor Certificate
|
K-1
|
|
Exhibit
L
|
Transfer
Affidavit for Residual Certificate Pursuant to
|
|
|
Section
6.02(e)
|
L-1
|
|
|
Exhibit
M
|
List
of Servicers and Servicing Agreements
|
M-1
|
|
Exhibit
N-1
|
Form
of Transfer Certificate (Restricted Global Security to
|
|
|
Regulation
S Security)
|
N-1-1
|
|
|
Exhibit
N-2
|
Form
of Transfer Certificate (Regulation S Security to
|
|
|
Restricted
Global Security)
|
N-2-1
|
|
|
Exhibit
O
|
Transaction
Parties
|
O
|
|
Exhibit
P
|
Purchase
Agreements
|
P
|
|
Exhibit
Q
|
Relevant
Servicing Criteria
|
Q
|
|
Exhibit
R
|
Additional
Form 10-D Disclosure
|
R
|
|
Exhibit
S
|
Additional
Form 10-K Disclosure
|
S
|
|
Exhibit
T
|
Additional
Form 8-K Disclosure
|
T
|
|
Exhibit
U
|
Additional
Disclosure Notification
|
U
|
|
Exhibit
V-1
|
Form
of Watchlist Report
|
V-1
|
|
Exhibit
V-2
|
Form
of Loss Severity Report
|
V-2
|
|
Exhibit
V-3
|
Form
of Prepayment Premiums Report
|
V-3
|
|
Exhibit
V-4
|
Form
of Analytics Report
|
V-4
|
|
Exhibit
W
|
Form
of Certification to be Provided by the Credit Risk Manager
|
W
|
|
Exhibit
X
|
Yield
Maintenance Agreement
|
Y
|
|
Schedule
I
|
Mortgage
Loan Schedule
|
|
|
Schedule
II
|
Final
Maturity Reserve Schedule
|
This
Pooling and Servicing Agreement is dated as of November 1, 2006 (the
“Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller
(the “Seller”),
XXXXX
FARGO BANK, N.A., a national banking association, as master servicer (in such
capacity, the “Master
Servicer”)
and as
securities administrator (in such capacity, the “Securities
Administrator”),
XXXXXXX FIXED INCOME SERVICES INC., as credit risk manager (the “Credit Risk
Manager”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking
association, as trustee (the “Trustee”)
and as
custodian.
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series
2006-13 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust
Fund,
the primary assets of which are the Mortgage Loans (as defined
below).
The
Depositor intends to sell the Certificates, to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund. The Certificates will consist of ten classes of
certificates, designated as (i) the Class A Certificates, (ii) the Class X
Certificates, (iii) the Class A-R Certificates, (iv) the Class B-1 Certificates,
(v) the Class B-2 Certificates, (vi) the Class B-3 Certificates, (vii) the
Class
B-4 Certificates, (viii) the Class B-5 Certificates, (ix) the Class B-6
Certificates and (x) the Class P Certificates.
For
federal income tax purposes, the Trust Fund (exclusive of the assets held
in the
Basis Risk Reserve Fund, the Yield Maintenance Account, the Yield Maintenance
Agreement, the Final Maturity Reserve Trust, the Final Maturity Reserve Account
and the Collateral Account (the “Excluded
Trust Property”))
comprises two REMICs in a tiered REMIC structure: the “Lower-Tier
REMIC”
and
the
“Upper-Tier
REMIC.”
Each
Certificate, other than the Class A-R Certificates, shall represent ownership
of
a regular interest in the Upper-Tier REMIC, as described herein. The Class
A,
Class B-1, Class B-2 and Class B-3 Certificates represent the right to receive
(i) payments in respect of Basis Risk Shortfalls from the Basis Risk Reserve
Fund as provided in Section 5.07 and (ii) payments in respect of Basis Risk
Shortfalls from the Yield Maintenance Account as provided in Section 5.01(g).
The owners of the Class X Certificates beneficially own the Basis Risk Reserve
Fund, the Yield Maintenance Account, the Final Maturity Reserve Account and
the
Final Maturity Reserve Trust. Each Class of Certificates (other than the
Class X
Certificates) represents the right to receive payments in respect of the
Final
Maturity Reserve Account. The Class A-R Certificate represents the sole class
of
residual interest in the Upper-Tier REMIC, as well as the sole residual interest
in the Lower-Tier REMIC.
The
Lower-Tier REMIC will hold as its assets all of the assets constituting the
Trust Fund (exclusive of the Excluded Trust Property) and shall issue 12
uncertificated interests, 11 of which shall be the “Lower-Tier
Regular Interests”
and
one
residual interest (the “LT-R
Interest”),
which
will represent the sole class of residual interest in the Lower-Tier REMIC.
The
Trustee will hold the Lower-Tier Regular Interests as assets of the Upper-Tier
REMIC.
For
purposes of the REMIC Provisions, the startup day for each REMIC created hereby
is the Closing Date. All REMIC regular and residual interests created hereby
will be retired on or before the Latest Possible Maturity Date.
Lower-Tier
REMIC Interests
The
following table sets forth (or describes) the designation, interest rate, and
initial principal balance for each interest in the Lower-Tier
REMIC:
|
Lower-Tier
REMIC
Interest
Designation
|
Interest
Rate
|
Initial
Principal
Balance
|
Corresponding
Class of Certificates
|
|||||||
|
LT-A
|
(1)
|
|
$
|
380,792,000.00
|
A
|
|||||
|
LT-AR
|
(1)
|
|
$
|
100.00
|
A-R
|
|||||
|
LT-B1
|
(1)
|
|
$
|
8,865,000.00
|
B-1
|
|||||
|
LT-B2
|
(1)
|
|
$
|
4,433,000.00
|
B-2
|
|||||
|
LT-B3
|
(1)
|
|
$
|
22,000.00
|
B-3
|
|||||
|
LT-B4
|
(1)
|
$
|
2,619,000.00
|
B-4
|
||||||
|
LT-B5
|
(1)
|
|
$
|
1,813,000.00
|
B-5
|
|||||
|
LT-B6
|
(1)
|
|
$
|
1,410,689.00
|
B-6
|
|||||
|
LT-P
|
(1)
|
$
|
100.00
|
P
|
||||||
|
LT-I
|
(2)
|
(2)
|
|
N/A
|
||||||
|
LT-R
|
(3)
|
(3)
|
|
N/A
|
||||||
__________________
|
(1)
|
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Regular Interests is
a per
annum rate equal to the Net WAC.
|
|
(2)
|
The
LT-I Interest is an interest only interest that does not have a principal
balance but has a notional amount as of any Distribution Date equal
to the
Stated Principal Balances of the Mortgage Loans as of the first day
of the
related Due Period (or in the case of the first Distribution Date,
as of
the Cut-Off Date). For any Distribution Date before the Distribution
Date
in December 2026, it shall bear interest for the related Accrual
Period at
a fixed rate of 0.00%, and for each Distribution Date commencing
on the
Distribution Date in December 2026 and on each Distribution Date
thereafter until the Final Maturity Reserve Termination Date, it
shall
bear interest for the related Accrual Period at a fixed rate equal
to the
Final Maturity Reserve Rate.
|
|
(3)
|
The
LT-R Interest is the sole Class of residual interest in the Lower-Tier
REMIC. It does not have an interest rate or a principal
balance.
|
On
each
Distribution Date, Available Funds, shall be allocated among the Lower-Tier
Interests in the following order of priority:
|
(i)
|
to
each Lower-Tier Interest until its principal balance equals the Class
Principal Balance of the Corresponding Class of Certificates immediately
after such Distribution Date;
|
|
(ii)
|
to
each Lower-Tier Interest, interest at the interest rates described
above;
and
|
2
|
(iii)
|
to
the
LT-R Interest, any remaining
amounts.
|
On
any
Distribution Date, after taking into account principal distributions under
priorities (i) and (ii) above, Realized Losses shall be allocated among the
Lower-Tier Interests in the same order of priority in which principal is
distributed among such Lower-Tier Interests pursuant to priority (i)
above.
On
each
Distribution Date, Prepayment Premium Amounts shall be distributed to the LT-P
Interest.
The
Certificates
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, and Original Class Principal Balance (or Original Class Notional Balance)
for each Class of Certificates comprising interests in the Trust Fund created
hereunder. Each Class of Certificates, other than the Class A-R Certificates,
is
hereby designated as representing ownership of regular interests in the
Upper-Tier REMIC.
|
Original
Class Principal
Balance
or Class Notional Balance
|
Pass-Through
Rate
|
|
|
Class
A
|
$380,792,000.00
|
(1)
|
|
Class X
|
Class
X Notional Balance (2)
|
(1)
|
|
Class
A-R
|
$
100.00 (3)
|
(3)
|
|
Class
B-1
|
$
8,865,000.00
|
(1)
|
|
Class
B-2
|
$
4,433,000.00
|
(1)
|
|
Class
B-3
|
$
3,022,000.00
|
(1)
|
|
Class
B-4
|
$
2,619,000.00
|
(1)
|
|
Class
B-5
|
$
1,813,000.00
|
(1)
|
|
Class
B-6
|
$
1,410,689.00
|
(1)
|
|
Class
P
|
$
100.00
|
(4)
|
____________
|
(1)
|
Calculated
pursuant to the definition of “Pass-Through
Rate.”
|
|
(2)
|
For
purposes of the REMIC provisions, the Class X Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the Class A, Class B-1, Class B-2 and Class B-3 Certificates.
The Class
X Certificates are interest-only certificates and will not be entitled
to
distributions of principal. In addition, the Class X Certificates
shall
also evidence ownership of the LT-I Interest in the Lower-Tier
REMIC
|
|
(3)
|
For
purposes of the REMIC provisions, the Class A-R Certificate represents
ownership of the Class LT-R Interest and the sole class of residual
interest in the Upper-Tier REMIC.
|
|
(4)
|
The
Class P Certificate shall not bear interest at a stated rate. The
Class P
Certificate shall have an initial Class Principal Balance of $100.00.
Prepayment Premium Amounts paid with respect to the Mortgage Loans
shall
be distributed to the Class P
Certificates.
|
3
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein shall
be made on the basis of an assumed 360-day year consisting of twelve 30-day
months unless otherwise indicated in this Agreement.
“Accepted
Master Servicing Practices”:
With
respect to any Mortgage Loan, as applicable, either (x) those customary mortgage
servicing practices of prudent mortgage servicing institutions that master
service mortgage loans of the same type and quality as such Mortgage Loan in
the
jurisdiction where the related Mortgaged Property is located, to the extent
applicable to the Trustee (as successor Master Servicer) or the Master Servicer
(except in its capacity as successor to any Servicer), or (y) as provided in
the
Servicing Agreements, to the extent applicable to the Servicers, but in no
event
below the standard set forth in clause (x).
“Account”:
The
Distribution Account, the Yield Maintenance Account, the Final Maturity Reserve
Account, the Basis Risk Reserve Fund or each Servicing Account, as the context
requires.
“Accrual
Period”:
With
respect to each Distribution Date and the LIBOR Certificates, the period
beginning on the immediately preceding Distribution Date (or the Closing Date,
in the case of the first Distribution Date) and ending on the day immediately
preceding such Distribution Date. Interest for such Classes of Certificates
will
be calculated based upon a 360-day year and the actual number of days in each
Accrual Period. With respect to each Distribution Date and any Class of Lower
Tier Regular Interests and the Class A-R, Class X, Class B-4, Class B-5 and
Class B-6 Certificates, the calendar month prior to the month of such
Distribution Date. Interest for such Lower Tier Regular Interests and such
Classes will be calculated based upon a 360-day year consisting of twelve 30-day
months in each Accrual Period.
“Additional
Disclosure Notification”:
As
defined in Section 3.19(a).
“Additional
Form 10-D Disclosure”:
As
defined in Section 3.19(a).
“Additional
Form 10-K Disclosure”:
As
defined in Section 3.19(b).
“Adjustment
Date”:
With
respect to each Mortgage Loan, each adjustment date on which the related Loan
Rate changes pursuant to the related Mortgage Note. The first Adjustment Date
following the Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage
Loan Schedule.
“Advance”:
With
respect to any Distribution Date and any Mortgage Loan or REO Property, any
advance made by the Master Servicer (including, without limitation, the Trustee
in its capacity as successor Master Servicer) in respect of such Distribution
Date pursuant to Section 5.05 (or by the Trustee pursuant to Section 7.02 as
successor Master Servicer) or by a Servicer in accordance with the related
Servicing Agreement.
4
“Adverse
REMIC Event”:
Either
(i) the loss of status as a REMIC, within the meaning of Section 860D of the
Code, for any group of assets identified as a REMIC in the Preliminary Statement
to this Agreement, or (ii) the imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions, and the tax imposed under
Section 860G(d) on certain contributions to a REMIC, on any REMIC created
hereunder to the extent such tax would be payable from assets held as part
of
the Trust Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction the numerator
of
which is the aggregate of the Class Principal Balance of the Subordinate
Certificates and the denominator of which is the Pool Balance for such
Distribution Date.
“Agreement”:
This
Pooling and Servicing Agreement, dated as of November 1, 2006, as amended,
supplemented and otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(d).
“Assignment”:
With
respect to any Mortgage, an assignment of mortgage, notice of transfer or
equivalent instrument, in recordable form, which is sufficient, under the laws
of the jurisdiction in which the related Mortgaged Property is located, to
reflect or record the sale of such Mortgage.
“Available
Funds”:
With
respect to any Distribution Date, an amount equal to (i) the sum, without
duplication, of (a) the aggregate of the Monthly Payments received on or
prior to the related Determination Date (excluding Monthly Payments due in
future Due Periods but received by the related Determination Date) in respect
of
the Mortgage Loans, (b) Net Liquidation Proceeds, Insurance Proceeds
(including from primary mortgage insurance policies), Principal Prepayments
(excluding Prepayment Premium Amounts), Recoveries and other unscheduled
recoveries of principal and interest in respect of the Mortgage Loans received
during the related Prepayment Period, (c) the aggregate of any amounts received
in respect of REO Properties for such Distribution Date in respect of the
Mortgage Loans, (d) the aggregate of any amounts of Interest Shortfalls
(excluding for such purpose all shortfalls as a result of Relief Act Reductions)
paid by the Servicers pursuant to the related Servicing Agreements and
Compensating Interest Payments deposited in the Distribution Account for that
Distribution Date in respect of the Mortgage Loans, (e) the aggregate of
the Purchase Prices, Substitution Adjustments Repurchase Prices and other
amounts collected for purchases pursuant to Sections 2.03 or 3.25 or
substitutions pursuant to Section 2.03 deposited in the Distribution Account
during the related Prepayment Period in respect of the Mortgage Loans,
(f) the aggregate of any Advances made by the Servicers and Advances made
by the Master Servicer for such Distribution Date in respect of the Mortgage
Loans, (g) the aggregate of any Advances made by the Trustee as successor
Master Servicer for that Distribution Date pursuant to Section 7.02 hereof
in
respect of the Mortgage Loans and (h) the Termination Price on the
Distribution Date on which the Trust Fund is terminated pursuant to Section
10.01; minus
(ii) the sum of (v) to the extent of amounts attributable to interest, the
Expense Fees for such Distribution Date in respect of the Mortgage Loans, (w)
to
the extent of amounts attributable to interest or principal, as applicable,
amounts in reimbursement for Advances previously made in respect of the Mortgage
Loans and other amounts as to which the Servicers, the Securities Administrator,
the Master Servicer, the Trustee, the Credit Risk Manager and the Custodian
are
entitled to be reimbursed pursuant to Section 4.03, (x) first, to the extent
of
amounts attributable to interest, and second, if such amounts are insufficient,
to the extent of amounts attributable to principal, the amount payable to the
Trustee, the Master Servicer, the Securities Administrator and the Custodian
pursuant to Sections 3.27(b), 3.28(c) and 8.05 hereof in respect of the Mortgage
Loans, and (y) amounts deposited in the Distribution Account, as the case may
be, in error, in respect of the Mortgage Loans, in each case without
duplication.
5
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Reserve Fund”:
A fund
created as part of the Trust Fund pursuant to Section 5.07 of this Agreement
but
which is not an asset of any of the REMICs.
“Basis
Risk Shortfall”:
With
respect to any Distribution Date and the LIBOR Certificates, the sum
of:
(i) the
excess, if any, of the Interest Distributable Amount that such Class would
have
been entitled to receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the actual
Interest Distributable Amount such Class is entitled to receive for such
Distribution Date (computed without regard to any allocation of Net Interest
Shortfalls);
(ii) any
excess described in clause (i) above remaining unpaid from prior Distribution
Dates; and
(iii) interest
for the applicable Accrual Period on the amount described in clause (ii) above
based on the applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than the
Physical Certificates shall be Book-Entry Certificates.
“Bulk
PMI Fee”:
Not
applicable.
“Bulk
PMI Fee Rate”:
Not
applicable.
6
“Bulk
PMI Policy”:
Not
applicable.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, the State of Maryland, the State of
Minnesota, the State of Texas, the State of New York or in the city in which
the
Corporate Trust Office of the Trustee or the Securities Administrator is located
are authorized or obligated by law or executive order to be closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust Fund pursuant to the second
paragraph of Section 10.01(a) hereof.
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate, Residual Certificate Class or Class P
Certificate.
“Certificate
Notional Balance”:
With
respect to each Certificate of any Class of Interest-Only Certificates and
any
date of determination, the product of (i) the Class Notional Balance of such
Class and (ii) the applicable Percentage Interest of such
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a given Class (other than any Interest-Only
Certificate) and any date of determination, the product of (i) the Class
Principal Balance of such Class and (ii) the applicable Percentage Interest
of
such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02 hereof.
Xxxxx Fargo Bank, N.A. shall act as Certificate Registrar, for so long as it
is
the Securities Administrator under this Agreement.
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a Holder
of the Residual Certificate for any purpose hereof; provided
that
solely for the purposes of taking any action or giving any consent pursuant
to
this Agreement, any Certificate registered in the name of the Depositor, the
Securities Administrator, the Master Servicer, the Trustee, any Servicer, the
Credit Risk Manager or any Affiliate thereof shall be deemed not to be
outstanding in determining whether the requisite percentage necessary to effect
any such consent has been obtained, except that, in determining whether the
Trustee shall be protected in relying upon any such consent, only Certificates
which a Responsible Officer of the Trustee knows to be so owned shall be
disregarded.
“Certification
Parties”:
As
defined in Section 3.18.
“Certifying
Person”:
As
defined in Section 3.18.
7
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
Notional Balance”:
With
respect to the Class X Certificates and any Distribution Date, the Class X
Notional Balance.
“Class
P Distributable Amount”:
With
respect to each Distribution Date, all Prepayment Premium Amounts in respect
of
the Mortgage Loans received by the Servicers for the related Prepayment Period
plus, on the first Distribution Date after which no Mortgage Loan is subject
to
payment of a Prepayment Premium Amount, $100.
“Class
Principal Balance”:
As to
any Distribution Date, with respect to any Class of Certificates (other than
the
Interest-Only Certificates), the Original Class Principal Balance thereof as
reduced by the sum of (x) all amounts actually distributed in respect of
principal of that Class on all prior Distribution Dates, (y) all Realized
Losses, if any, actually allocated to that Class on all prior Distribution
Dates
and (z) any applicable Writedown Amount; provided,
however,
that
pursuant to Section 5.08, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated to
such Class pursuant to Section 5.03 in the event that there is a Recovery on
a
Mortgage Loan, and the Certificate Principal Balance of any individual
Certificate of such Class will be increased by its pro
rata
share of
the increase to such Class.
“Class
Subordination Percentage”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of such Class immediately before such Distribution Date and
the denominator of which is the aggregate of the Class Principal Balances of
all
Classes of Certificates immediately before such Distribution Date.
“Class
X Certificate”:
Any of
the Class X Certificates as designated on the face thereof, executed by the
Securities Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier REMIC created hereunder
and representing the right to distributions as set forth herein and therein.
“Class
X Notional Balance”:
For
the Class X Certificates and for any Distribution Date, the aggregate Class
Principal Balance of the LIBOR Certificates immediately prior to such
Distribution Date (initially, equal to $397,112,000.00).
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Closing
Date”:
December 13, 2006.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Collateral
Account”:
The
account established and maintained by the Trustee in accordance with the
provisions of Section 4.04.
8
“Commission”:
U.S.
Securities and Exchange Commission.
“Compensating
Interest Payment”:
With
respect to any Distribution Date, an
amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all shortfalls
as
a result of Relief Act Reductions) required to be paid by the Servicers pursuant
to the related Servicing Agreement with respect to such Distribution Date,
exceeds (y) the aggregate amount actually paid by the Servicers in respect
of
such shortfalls; provided,
that
such amount, to the extent payable by the Master Servicer or the Trustee as
successor master servicer, shall not exceed the aggregate Master Servicing
Fee
that would be payable to the Master Servicer in respect of such Distribution
Date without giving effect to any Compensating Interest Payment.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
With
respect to any Cooperative Loan, (i) the Cooperative Shares, together with
a
stock power in blank; (ii) the original or a copy of the executed Security
Agreement and the assignment of the Security Agreement in blank; (iii) the
original or a copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original, if available,
or
a copy of the executed Recognition Agreement and, if available, the original
assignment of the Recognition Agreement (or a blanket assignment of all
Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing
statement with evidence of recording thereon, which has been filed in all places
required to perfect the security interest in the Cooperative Shares and the
Proprietary Lease; and (vi) executed UCC amendments (or copies thereof) or
other
appropriate UCC financing statements required by state law, evidencing a
complete and unbroken line from the mortgagee to the Trustee with evidence
of
recording thereon (or in a form suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office of the Trustee
at
which at any particular time its corporate trust business in connection with
this Agreement shall be administered, which office at the date of the execution
of this instrument is located at 0000 Xxxx Xx. Xxxxxx Xxxxx, Xxxxx Xxx,
Xxxxxxxxxx 00000, Attention: HarborView 2006-13, or at such other address as
the
Trustee may designate from time to time by notice to the Certificateholders,
the
Depositor, the Master Servicer, the Securities Administrator and the Seller.
With respect to the Securities Administrator and the Certificate Registrar
and
(i) presentment of Certificates for registration of transfer, exchange or final
payment, Xxxxx Fargo Bank, N.A., Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Corporate Trust, HarborView Mortgage Loan Trust
2006-13, and (ii) for all other purposes, X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000
(or for overnight deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
21045), Attention: Corporate Trust, HarborView 2006-13.
9
“Corresponding
Class”:
With
respect to each class of Lower-Tier Regular Interests, the Class or Classes
of
Certificates corresponding to such Class as set forth in the Preliminary
Statement.
“Credit
Risk Management Agreement”:
Either
(i) any of the credit risk management agreements dated as of the Closing Date,
entered into by the related Servicer and the Credit Risk Manager or (ii) the
credit risk management agreement dated as of the Closing Date, entered into
by
the Master Servicer and the Credit Risk Manager, as applicable.
“Credit
Risk Manager”:
Xxxxxxx Fixed Income Services Inc., a Colorado corporation, and its successors
and assigns.
“Credit
Risk Manager Fee”:
With
respect to any Distribution Date and each Mortgage Loan, an amount equal to
the
product of (a) one twelfth, (b) the Credit Risk Manager Fee Rate and (c) the
Scheduled Principal Balance of such Mortgage Loan as of the first day of the
related Collection Period.
“Credit
Risk Manager Fee Rate”:
0.0050% per annum.
“Current
Interest”:
With
respect to each Class of Certificates (other than the Class P Certificates)
and
any Distribution Date an amount equal to the sum of (i) interest accrued during
the related Accrual Period at the applicable Pass-Through Rate on the Class
Certificate Principal Balance or Class Certificate Notional Balance, as
applicable, of that Class immediately prior to such Distribution Date, plus
(ii)
the excess of the amount determined under clause (i) above for all prior
Distribution Dates over the amount actually distributed as interest on such
Class on such Prior Distribution Dates. Notwithstanding the foregoing, however,
on any Distribution Date for which there exists a Net Interest Shortfall, the
Net Interest Shortfall shall be apportioned among the Classes of Certificates
then outstanding in proportion to and in reduction of the amount that would
have
been the Current Interest for such Distribution Date but for the existence
of
such Net Interest Shortfall.
“Custodial
Agreement”:
Not
applicable.
“Custodian”:
Deutsche Bank National Trust Company, and its successors acting as custodian
of
the Mortgage Files, as indicated on the Mortgage Loan Schedule.
“Cut-Off
Date”:
With
respect to any Mortgage Loan other than a Qualified Substitute Mortgage Loan,
the Close of Business in New York City on November 1, 2006. With respect to
any
Qualified Substitute Mortgage Loan, the date designated as such on the Mortgage
Loan Schedule (as amended).
10
“Cut-Off
Date Aggregate Principal Balance”:
The
aggregate of the Cut-Off Date Principal Balances of all of the Mortgage
Loans.
“Cut-Off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-Off Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, unless the reduction results from a Deficient
Valuation.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the Servicing Agreements, on which the Servicers determine the amount of
all
funds required to be remitted to the Master Servicer on the Servicer Remittance
Date with respect to the Mortgage Loans it is servicing.
11
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Securities Administrator based upon an Opinion
of Counsel provided to the Securities Administrator by nationally recognized
counsel acceptable to the Securities Administrator that the holding of an
ownership interest in the Residual Certificate by such Person may cause the
Trust Fund or any Person having an ownership interest in any Class of
Certificates (other than such Person) to incur liability for any federal tax
imposed under the Code that would not otherwise be imposed but for the transfer
of an ownership interest in the Residual Certificate to such
Person.
“Distressed
Mortgage Loan”:
Any
Mortgage Loan that at the date of determination is Delinquent in payment for
a
period of 90 days or more without giving effect to any grace period permitted
by
the related Mortgage Note or for which the Servicer on behalf of the Trust
Fund
has accepted a deed in lieu of foreclosure.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Securities Administrator
pursuant to Section 4.02 hereof for the benefit of the Certificateholders which
shall be entitled “Distribution Account, Xxxxx Fargo Bank, N.A., as Securities
Administrator for Deutsche Bank National Trust Company, as Trustee, in trust
for
the registered Holders of HarborView Mortgage Loan Trust, Mortgage Loan
Pass-Through Certificates, Series 2006-13” and which must be an Eligible
Account.
“Distribution
Account Income”:
With
respect to any Distribution Date, any interest or other investment income earned
on funds deposited in the Distribution Account during the month of such
Distribution Date.
“Distribution
Date”:
The
19th day of each month, or, if such day is not a Business Day, the next Business
Day commencing in December 2006.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Xxxxxx”:
Xxxxxx
Savings and Loan Association, F.A., and its successors and assigns, in its
capacity as Originator of the Xxxxxx Mortgage Loans.
“Xxxxxx
Mortgage Loans”:
The
Mortgage Loans for which Xxxxxx is listed as “Originator” on the Mortgage Loan
Schedule.
“Xxxxxx
Purchase Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of December
1,
2005, between GCFP, as purchaser, and Xxxxxx, as seller, as the same may be
amended from time to time, and any assignments and conveyances related to the
Xxxxxx Mortgage Loans.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of the
calendar month in which such Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
12
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day of
the
month preceding the month in which such Distribution Date occurs and ending
on
the first day of the month in which such Distribution Date occurs.
“Eligible
Account”:
Any
of:
(i) an
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term rating
category of each Rating Agency at the time any amounts are held on deposit
therein;
(ii) an
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Securities Administrator and the Trustee and to each Rating Agency, the Trustee
on behalf of the Certificateholders will have a claim with respect to the funds
in the account or a perfected first priority security interest against the
collateral (which shall be limited to Permitted Investments) securing those
funds that is superior to claims of any other depositors or creditors of the
depository institution with which such account is maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iv) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from such Rating Agency to the Securities Administrator and the Trustee.
Eligible Accounts may bear interest.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class B-4, Class B-5, Class B-6 Certificates, the Class P Certificate and
the Residual Certificate, (ii) any
other Certificates that are not rated at least “BBB-” (or its equivalent) by at
least one Rating Agency upon acquisition or (iii) in general,
any
Certificate that does not satisfy the applicable rating requirement under the
Underwriter’s Exemption.
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
“Event
of Default”:
In
respect of the Master Servicer, one or more of the events (howsoever described)
set forth in Section 7.01 hereof as an event or events upon the occurrence
and
continuation of which the Master Servicer may be terminated.
13
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder.
“Expense
Fee”
With
respect to any Mortgage Loan, the sum of (i) the Master Servicing Fee, (ii)
the
Servicing Fee with respect to the Servicers and (iii) the Credit Risk Manager
Fee.
“Expense
Fee Rate”:
With
respect to any Mortgage Loan, the per annum rate at which the Expense Fee
accrues for such Mortgage Loan as set forth in the Mortgage Loan
Schedule.
“Xxxxxx
Xxx”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”:
The
Distribution Date occurring in December 2036.
“Final
Maturity Reserve Account”:
The
account created pursuant to Section 5.09 of this Agreement.
“Final
Maturity Reserve Amount”:
With
respect to each Distribution Date prior to the Distribution Date in December
2026, zero. On the Distribution Date in December 2026 and on each Distribution
Date thereafter until the Final Maturity Reserve Termination Date, an amount
equal to the lesser of (x) the product of (i) the Final Maturity Reserve Rate
divided by 12 and (ii) the aggregate Stated Principal Balance of the Mortgage
Loans, (y) the interest portion of Available Funds before taking into account
any distributions pursuant to Section 5.01(a) of this Agreement and after
payment of any fees and expenses of the Trust pursuant to this Agreement and
(z)
the Final Maturity Reserve Shortfall Amount. No deposit is required on any
Distribution Date if the aggregate Stated Principal Balance of Mortgage Loans
having 40-year original terms to maturity on such Distribution Date is less
than
or equal to the aggregate principal balance set forth in the Final Maturity
Reserve Schedule for such Distribution Date.
“Final
Maturity Reserve Rate”:
A per
annum rate equal to the product of (i) 0.80%
and
(ii) a fraction, the numerator of which is the aggregate Stated Principal
Balance as of the applicable Cut-off Date of the Mortgage Loans having 40-year
original terms to maturity and the denominator of which is the aggregate Stated
Principal Balance of the Mortgage Loans as of the Cut-off Date.
“Final
Maturity Reserve Schedule”:
With
respect to each Distribution Date on or after the Distribution Date in December
2026 through the Final Maturity Reserve Termination Date, the aggregate
principal balance set forth on Schedule II hereto for that Distribution
Date.
“Final
Maturity Reserve Shortfall Amount”:
For
each Distribution Date, the lesser of (i) $5,293,604.00 or
(ii) a
fraction, the numerator of which is the Stated Principal Balance of the Mortgage
Loans having 40-year original terms to maturity on such Distribution Date and
the denominator of which is the aggregate Class Principal Balance of the
Certificates (other than any Interest-Only Certificates).
14
“Final
Maturity Reserve Termination Date”:
With
respect to each Distribution Date on or after the Distribution Date in December
2026, the earlier of (i) the Distribution Date in June 2036 or (ii) the
termination of the Trust Fund.
“Final
Maturity Reserve Trust”:
The
corpus of a trust created pursuant to Section 5.09 of this Agreement and
designated as the “Final Maturity Reserve Trust,” consisting of the Final
Maturity Reserve Account, but which is not an asset of any REMIC.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or as
contemplated by Sections 2.03, 3.25 and 10.01), a determination made by the
related Servicer, reported to the Master Servicer, that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the related Servicer
expects to be finally recoverable in respect thereof have been so recovered.
“First
Republic”:
First
Republic Bank, and its successors and assigns, in its capacity as Originator
of
the First Republic Mortgage Loans.
“First
Republic Mortgage Loans”:
The
Mortgage Loans for which First Republic is listed as “Originator” on the
Mortgage Loan Schedule.
“First
Republic Purchase Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement, dated as of July 1,
2003,
as amended and restated to and including February 1, 2006, between GCFP, as
purchaser, and First Republic, as seller, as the same may be amended from time
to time, and any assignments and conveyances related to the First Republic
Mortgage Loans.
“Fitch”:
Fitch
Ratings, Inc., or any successor thereto.
“Form
8-K Disclosure Information”:
As
defined in Section 3.19(c).
“Xxxxxxx
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors and
assigns.
“GMAC”:
GMAC
Mortgage, LLC (as successor in interest to GMAC Mortgage Corporation), and
any
successors thereto, in its capacity as Originator of the GMAC Mortgage
Loans.
“GMAC
Mortgage Loans”:
The
Mortgage Loans for which GMAC is listed as “Originator” on the Mortgage Loan
Schedule.
“GMAC
Purchase Agreement”:
The
Master Flow Sale and Servicing Agreement dated and effective as of April 1,
2004, between the GCFP and GMAC (Adjustable Rate Conventional Mortgage Loans,
Group No. 2004-NC1), as amended by Amendment Number One, dated as of September
29, 2005, and as amended by Amendment Number Two, dated as of September 29,
2005, as the same may be amended from time to time, and any assignments and
conveyances related to the GMAC Mortgage Loans.
15
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Indemnified
Persons”:
The
Trustee (individually in its corporate capacity and in all capacities
hereunder), the Master Servicer, the Depositor, the Securities Administrator
(in
all capacities hereunder) and the Custodian and their respective officers,
directors, agents and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
“Independent”:
When
used with respect to any accountants, a Person who is “independent” within the
meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation
S-X. Independent means, when used with respect to any other Person, a Person
who
(A) is in fact independent of another specified Person and any affiliate of
such
other Person, (B) does not have any material direct or indirect financial
interest in such other Person or any affiliate of such other Person, (C) is
not
connected with such other Person or any affiliate of such other Person as an
officer, employee, promoter, underwriter, trustee, partner, director or Person
performing similar functions and (D) is not a member of the immediate family
of
a Person defined in clause (B) or (C) above.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate other than the Interest-Only Certificates, the amount
designated “Initial Certificate Principal Balance” on the face
thereof.
“Initial
Certificate Notional Balance”:
With
respect to the Interest-Only Certificates, the amount designated “Initial
Certificate Notional Balance” on the face thereof.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the related Servicing
Agreement.
“Interest-Only
Certificate”:
Any of
the Class X Certificates.
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act or similar state or local law, an
amount determined as follows:
16
(a) Principal
Prepayments in part received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate for
such Mortgage Loan on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the applicable
Net Loan Rate) received at the time of such prepayment; and
(b) Principal
Prepayments in full received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) received at the time
of
such prepayment; and
(c) any
Relief Act Reductions for such Distribution Date.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-Off Date, the Distribution Date following the fifth
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-Off Date.
“Lender-Paid
Mortgage Insurance Loan”:
Not
Applicable.
“LIBOR”:
With
respect to the first Accrual Period, the Initial LIBOR Rate. With respect to
each subsequent Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Securities Administrator
on
the basis of the “Interest Settlement Rate” set by the BBA for one-month United
States dollar deposits, as such rates appear on the Telerate Page 3750, as
of
11:00 a.m. (London time) on such LIBOR Determination Date.
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities Administrator
will obtain such rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination Date, LIBOR for
such
date will be the most recently published Interest Settlement Rate. In the event
that the BBA no longer sets an Interest Settlement Rate, the rate for such
date
will be determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00 am (London
time) on such date to prime banks in the London interbank market. In such event,
the Securities Administrator will request the principal London office of each
of
the Reference Banks to provide a quotation of its rate. If at least two such
quotations are provided, the rate for that date will be the arithmetic mean
of
the quotations (rounded upwards if necessary to the nearest whole multiple
of
1/16%). If fewer than two quotations are provided as requested, the rate for
that date will be the arithmetic mean of the rates quoted by major banks in
New
York City, selected by the Securities Administrator (after consultation with
the
Depositor), at approximately 11:00 a.m. (New York City time) on such date for
one-month U.S. dollar loan to leading European banks.
17
(b) The
establishment of LIBOR by the Securities Administrator and the Securities
Administrator’s subsequent calculation of the Pass-Through Rate applicable to
the LIBOR Certificates for the relevant Accrual Period, in the absence of
manifest error, will be final and binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class A, Class B-1, Class B-2 and Class B-3 Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
With
respect to any Distribution Date, any Mortgage Loan in respect of which the
related Servicer or the Master Servicer have determined, in accordance with
the
servicing procedures specified herein, as of the end of the related Prepayment
Period, that all Liquidation Proceeds that it expects to recover with respect
to
the liquidation of such Mortgage Loan or disposition of the related REO Property
have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the related
Servicing Agreement.
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Master Servicer or the related Servicers,
such expenses including (a) property protection expenses, (b) property sales
expenses, (c) foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or incurred in
connection with liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
related Servicer as proceeds from the liquidation of such Mortgage Loan, as
determined in accordance with the applicable provisions of the related Servicing
Agreement, other than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the related Servicing Agreement, “Liquidation Proceeds” shall also
include amounts realized in connection with such repurchase, substitution or
sale.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
18
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
lost or destroyed and has not been replaced, an affidavit from the Seller
certifying that the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying the Trust
Fund against any loss, cost or liability resulting from the failure to deliver
the original Mortgage Note) in the form of Exhibit H hereto.
“Lower-Tier
Regular Interest”:
Any
one of the interests in the Lower-Tier REMIC, as described in the Preliminary
Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Master
Consulting Agreement”:
The
master consulting agreement dated as of April 18, 2005, by and between
Greenwich Capital Markets, Inc. and the Credit Risk Manager.
“Master
Servicer”:
Xxxxx
Fargo Bank, N.A., or any successor Master Servicer appointed as herein
provided.
“Master
Servicing Fee”:
As to
any Distribution Date and each related Mortgage Loan, an amount equal to the
product of the applicable Master Servicing Fee Rate and the outstanding
Principal Balance of such Mortgage Loan as of the first day of the related
Due
Period.
“Master
Servicing Fee Rate”:
0.0195% per annum.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS® System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and/or
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act
or
similar state or local law; (b) without giving effect to any extension granted
or agreed to by the related Servicer pursuant to the applicable provisions
of
the related Servicing Agreement; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when due.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or first
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
19
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of November 1, 2006, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s right and interest in the agreements listed on Exhibit M
hereto) to or at the direction of the Depositor.
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to each
Mortgage Loan:
|
(i)
|
the
Mortgage Loan identifying number;
|
| (ii) |
the
state and five-digit ZIP code of the Mortgaged
Property;
|
|
(iii)
|
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
|
|
(iv)
|
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit, (d)
a two-
to four-unit residential property, (e) a townhouse, (f) a cooperative,
or
(g) other type of Residential
Dwelling;
|
|
(v)
|
if
the related Mortgage Note permits the borrower to make Monthly Payments
of
interest only for a specified period of time, (a) the original number
of
such specified Monthly Payments and (b) the remaining number of such
Monthly Payments as of the Cut-Off
Date;
|
20
|
(vi)
|
the
original months to maturity;
|
|
(vii)
|
the
stated remaining months to maturity from the Cut-Off Date based on
the
original amortization schedule;
|
|
(viii)
|
the
Loan-to-Value Ratio at origination;
|
|
(ix)
|
the
Loan Rate in effect immediately following the Cut-Off
Date;
|
|
(x)
|
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
|
|
(xi)
|
the
stated maturity date;
|
|
(xii)
|
the
Master Servicing Fee Rate and the Servicing Fee
Rate;
|
|
(xiii)
|
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
|
|
(xiv)
|
the
original principal balance of the Mortgage
Loan;
|
|
(xv)
|
the
Stated Principal Balance of the Mortgage Loan on the Cut-Off Date
and a
code indicating the purpose of the Mortgage Loan (i.e., purchase
financing, rate/term refinancing, cash-out
refinancing);
|
|
(xvi)
|
the
Index and Gross Margin specified in related Mortgage
Note;
|
|
(xvii)
|
the
next Adjustment Date, if
applicable;
|
|
(xviii)
|
the
Maximum Loan Rate, if applicable;
|
|
(xix)
|
the
Value of the Mortgaged Property;
|
|
(xx)
|
the
sale price of the Mortgaged Property, if
applicable;
|
|
(xxi)
|
the
product code; and
|
|
(xxii)
|
the
Servicer that is servicing such Mortgage Loan and the Originator
of such
Mortgage Loan.
|
Information
set forth in clauses (ii) and (iii) above regarding each Mortgagor and the
related Mortgaged Property shall be confidential and the Trustee (or Master
Servicer) shall not disclose such information except to the extent disclosure
may be required by any law or regulatory or administrative authority;
provided,
however,
that
the Trustee may disclose on a confidential basis any such information to its
agents, attorneys and any auditors in connection with the performance of its
responsibilities hereunder.
21
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate as
of
the Cut-Off Date: (1) the number of Mortgage Loans; (2) the current
Principal Balance of the Mortgage Loans; (3) the weighted average Loan Rate
of the Mortgage Loans; and (4) the weighted average remaining months to
maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended
from
time to time by the Seller in accordance with the provisions of this
Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of the Interest Shortfall, if
any,
for such Distribution Date over the sum of (i) Interest Shortfalls paid by
the
Servicers under the related Servicing Agreements with respect to such
Distribution Date and (ii) Compensating Interest Payments made with respect
to
such Distribution Date.
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, related Servicing Advances, the Master Servicing Fee, the related
Servicing Fees and any other accrued and unpaid servicing fees received and
retained in connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Loan
Rate for such Mortgage Loan minus
the
Expense Fee Rate and, commencing on the Distribution Date in December 2026
and
on each Distribution Date thereafter until the Final Maturity Reserve
Termination Date, the Final Maturity Reserve Rate.
“Net
Realized Losses”:
For
any Class of Certificates and any Distribution Date, the excess of (i) the
amount of Realized Losses previously allocated to that Class (ii) the sum of
(a)
the amount of any increases to the Class Principal Balance of that Class
pursuant to Section 5.08 due to Recoveries and (b) with respect to the LIBOR
Certificates, any payments received pursuant to Sections 5.01(a)(ii) and (iv)
from the Yield Maintenance Account.
“Net
WAC”:
With
respect to the Mortgage Loans and any Distribution Date, the weighted average
of
the Net Loan Rates of the Mortgage Loans as of the first day of the related
Due
Period (or, in the case of the first Distribution Date, as of the Cut-Off Date),
weighted on the basis of their related Stated Principal Balances as of the
first
day of the related Due Period (or, in the case of the first Distribution Date,
as of the Cut-Off Date).
22
“Net
WAC Cap”:
With
respect to the LIBOR Certificates and any Distribution Date, the product of
(x)
the Net WAC for such Distribution Date and (y) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of days in the
related Accrual Period.
“Nonrecoverable”:
A
determination by the Master Servicer or the related Servicer in respect of
a
delinquent Mortgage Loan that if it were to make an Advance or an advance of
a
delinquent Monthly Payment, respectively, in respect thereof, such amount would
not be recoverable from any collections or other recoveries (including
Liquidation Proceeds) on such Mortgage Loan.
“Notional
Certificate”:
Any
Class X Certificate.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller, the Master Servicer or the Depositor, as applicable.
“One-Month
LIBOR”:
The
average of interbank offered rates for one month U.S. dollar deposits in the
London market based on quotations of major banks.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee or the Securities
Administrator, as applicable, except that any opinion of counsel relating to
(a)
the qualification of any REMIC created hereunder as a REMIC or (b) compliance
with the REMIC Provisions must be an opinion of Independent
counsel.
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
|
Class
B-1
|
5.50%
|
|
Class
B-2
|
3.30%
|
|
Class
B-3
|
2.20%
|
|
Class
B-4
|
1.45%
|
|
Class
B-5
|
0.80%
|
|
Class
B-6
|
0.35%
|
“Original
Class Certificate Notional Balance”:
With
respect to the Class X Certificates, the corresponding aggregate notional amount
set forth opposite the Class designation of such Class in the Preliminary
Statement.
23
“Original
Class Principal Balance”:
With
respect to each Class of Certificates, other than the Notional Certificates,
the
corresponding aggregate amount set forth opposite the Class designation of
such
Class in the Preliminary Statement.
“Original
Subordinated Principal Balance”:
The
aggregate of the Original Class Principal Balances of the Classes of Subordinate
Certificates.
“Originator”:
Each
party listed as an “Originator” on Exhibit P hereto or any other originator
contemplated by Item 1110 (§229.1110) of Regulation AB.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates and any Distribution Date, the rate set
forth below:
(i) The
Pass-Through Rate for the Class A Certificates with respect to any Distribution
Date shall equal the lesser of (i) One-Month LIBOR plus 0.1800% per annum
(0.3600% per annum after the Call Option Date), (ii) the Net WAC Cap for
that Distribution Date and (iii) 10.50% per annum.
(ii) The
Pass-Through Rate for the Class X Certificates with respect to any Distribution
Date shall equal the excess, if any, of (1) the Net WAC Cap of the Mortgage
Loans minus (2)
a
rate equal to the product of (a) the interest accrued on the Class
A,
Class B-1, Class B-2 and Class B-3 Certificates
during the related Accrual Period multiplied by (b) 12, divided by the aggregate
Class Principal Balance of the Class
A,
Class B-1, Class B-2 and Class B-3 Certificates
immediately prior to the applicable Distribution Date.
(iii) The
Pass-Through Rate for the Class A-R Certificates with respect to any
Distribution Date shall equal the Net WAC of the Mortgage Loans for that
Distribution Date.
(iv) The
Pass-Through Rate for the Class B-1 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 0.3500%
per
annum (0.5250% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
24
(v) The
Pass-Through Rate for the Class B-2 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 0.5000%
per
annum (0.7500% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
(vi) The
Pass-Through Rate for the Class B-3 Certificates with respect to any
Distribution Date shall equal the least of (i) One-Month LIBOR plus 1.5000%
per
annum (2.2500% per annum after the Call Option Date), (ii) the Net WAC Cap
for that Distribution Date and (iii) 10.50% per annum.
(vii) The
Pass-Through Rate for the Class B-4, Class B-5 and Class B-6 Certificates with
respect to any Distribution Date shall equal the Net WAC of the Mortgage Loans
for that Distribution Date.
“Paying
Agent”:
Any
paying agent appointed pursuant to Section 6.05 hereof. The initial Paying
Agent
shall the Securities Administrator.
“PCAOB”:
The
Public Company Accounting Oversight Board.
“Percentage
Interest”:
With
respect to any Certificate other than the Class A-R or Class P Certificate,
a fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of which is
the
Original Class Certificate Principal Balance or Original Class Certificate
Notional Balance, as applicable, of the related Class. With respect to the
Class
P Certificates, the percentage interest specified on the face thereof. With
respect to the Class A-R Certificate, 100%.
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by the
Depositor, the Trustee, the Master Servicer or any of their respective
Affiliates or for which an Affiliate of the Trustee serves as an
advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee, the Master Servicer or their agents acting in their
respective commercial capacities) incorporated under the laws of the United
States of America or any state thereof and subject to supervision and
examination by federal and/or state authorities, so long as, at the time of
such
investment or contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has a short-term
uninsured debt rating in one of the two highest available rating categories
of
each
of
the Rating Agencies
and (B)
any other demand or time deposit or deposit which is fully insured by the
FDIC;
25
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by each of the Rating Agencies;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of
Columbia or any State thereof and that are rated by each Rating Agency in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) any
mutual fund, money market fund, common trust fund or other pooled investment
vehicle, including any such fund that is managed by the Securities Administrator
or any affiliate of the Securities Administrator or for which the Securities
Administrator or any of its affiliates acts as an adviser as long as such fund
is rated in at least the second highest rating category each of the Rating
Agencies, if so rated; and the Securities Administrator may trade with itself
or
an affiliate when purchasing or selling Permitted Investments; and
(vii) if
previously confirmed in writing to the Securities Administrator, any other
demand, money market or time deposit, or any other obligation, security or
investment, as may be acceptable to each Rating Agency in writing as a permitted
investment of funds backing securities having ratings equivalent to its highest
initial ratings of the Senior Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
“Permitted
Transferee”:
Any
Transferee of the Residual Certificate other than a Disqualified Organization
or
a non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Physical
Certificates”:
The
Class A-R and Class P Certificates.
“Pool
Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal
Balances, as of the Close of Business on the first day of the related Due
Period, of the Mortgage Loans that were Outstanding Mortgage Loans on that
day.
26
“Premium
Proceeds”:
The
amount by which the Termination Price paid in connection with the termination
pursuant to Section 10.01 hereof exceeds the sum of (i) accrued and unpaid
interest and unpaid principal on the Certificates and any Basis Risk Shortfalls
remaining unpaid, (ii) any unreimbursed Advances and Servicing Advances and
any unpaid Servicing Fees and (iii) all amounts, if any, then due and owing
to the Master Servicer, the Securities Administrator, Trustee, the Custodian
and
the Credit Risk Manager under this Agreement.
“Prepayment
Period”:
With
respect to any Distribution Date the calendar month preceding the month in
which
such Distribution Date occurs.
“Prepayment
Premium Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a result
of full or partial Principal Prepayments collected by the applicable Servicer
during the immediately preceding Prepayment Period and deposited into the
Distribution Account for distribution to the Holders of the Class P
Certificates.
“Primary
Insurance Policy”:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
“Principal
Balance”:
With
respect to any Mortgage Loan, other than a Liquidated Mortgage Loan, and any
day, the related Cut-Off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan after
the Cut-Off Date. For purposes of this definition, a Liquidated Mortgage Loan
shall be deemed to have a Principal Balance equal to the Principal Balance
of
the related Mortgage Loan as of the final recovery of related Liquidation
Proceeds and a Principal Balance of zero thereafter. With respect to any REO
Property and any day, the Principal Balance of the related Mortgage Loan
immediately prior to such Mortgage Loan becoming REO Property.
“Principal
Distribution Amount”:
With
respect to any Distribution Date, the sum of (a) each scheduled payment of
principal collected or advanced on the related Mortgage Loans (before taking
into account any Deficient Valuation or Debt Service Reductions) by the related
Servicer or the Master Servicer in respect of the related Due Period,
(b) that portion of the Purchase Price or Repurchase Price, as applicable,
representing principal of any repurchased Mortgage Loan, deposited to the
Distribution Account during the related Prepayment Period, (c) the
principal portion of any related Substitution Adjustments deposited in the
Distribution Account during the related Prepayment Period, (d) the
principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans that are not yet Liquidated
Mortgage Loans, (e) the principal portion of all Net Liquidation Proceeds
received during the related Prepayment Period with respect to Liquidated
Mortgage Loans other than Recoveries, (f) all Principal Prepayments in part
or in full on Mortgage Loans applied by the Servicers or the Master Servicer
during the related Prepayment Period, (g) all Recoveries received during the
Prepayment Period and (h) on the Distribution Date on which the Trust is to
be
terminated pursuant to Section 10.01 hereof, that portion of the Termination
Price in respect of principal.
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
27
“Private
Certificates”:
The
Class B-4, Class B-5, Class B-6 and Class P Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated December 11, 2006 relating to the initial
sale of the Class B-4, Class B-5 and Class B-6 Certificates.
“Pro
Rata Share”:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
portion of the Subordinate Principal Distribution Amount allocable to such
Class, equal to the product of the (a) Subordinate Principal Distribution Amount
on such date and (b) a fraction, the numerator of which is the related Class
Principal Balance of that Class and the denominator of which is the aggregate
of
the Class Principal Balances of all the Classes of Subordinate
Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Prospectus Supplement, together with the accompanying prospectus dated August
10, 2006, relating to the Senior Certificates and the Class B-1, Class B-2
and
Class B-3 Certificates.
“Prospectus
Supplement”:
The
Prospectus Supplement dated December 11, 2006 relating to the offering of the
Senior Certificates and the Class B-1, Class B-2 and Class B-3
Certificates.
“Purchase
Agreement”:
Each
mortgage loan purchase agreement and/or assignment agreement relating to the
acquisition by the Seller of the Mortgage Loans and between the related
Originator and the Seller, listed on Exhibit P hereto.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03 hereof, and as confirmed by an Officers’
Certificate from the Seller to the Trustee and the Securities Administrator,
an
amount equal to the sum of (i) 100% of the Principal Balance thereof as of
the date of purchase (or such other price as is provided in Section 10.01),
plus
(ii) in the case of (x) a Mortgage Loan, accrued interest on such
Principal Balance at the applicable Loan Rate (or if the related Servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the applicable Servicing
Fee Rate) from the Due Date as to which interest was last covered by a payment
by the Mortgagor through the end of the calendar month in which the purchase
is
to be effected, and (y) an REO Property, the sum of (1) accrued
interest on such Principal Balance at the applicable Loan Rate (or if the
related Servicer is repurchasing such Mortgage Loan, the Loan Rate minus the
applicable Servicing Fee Rate) from the Due Date as to which interest was last
covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such
REO
Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus (iii) any
unreimbursed Servicing Advances and any unpaid Expense Fees allocable to such
Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and damages
incurred by the Trust Fund in connection with any violation by such Mortgage
Loan of any predatory- or abusive-lending laws.
28
“Qualified
Institutional Buyer”:
As
defined in Rule 144A of the Securities Act.
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, so long as the claims paying ability of which
is
acceptable to each Rating Agency for pass-through certificates having the same
ratings on the Certificates rated by each Rating Agency as of the Closing Date.
Any replacement insurer with respect to a Mortgage Loan must have at least
as
high a claims paying ability rating as the insurer it replaces had on the
Closing Date.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
as of the date of substitution equal to or lower than the Loan-to-Value Ratio
of
the Deleted Mortgage Loan as of such date, (ix) have been underwritten or
re-underwritten in accordance with the same or substantially similar
underwriting criteria and guidelines as the Deleted Mortgage Loan, (x) is of
the
same or better credit quality as the Deleted Mortgage Loan and (xi) conform
to each representation and warranty set forth in Section 2.04 hereof applicable
to the Deleted Mortgage Loan. In the event that one or more mortgage loans
are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (vi) hereof shall be determined on
the basis of weighted average remaining term to maturity and the Loan-to-Value
Ratio described in clause (viii) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
“Rating
Agency”:
Each
of Fitch and S&P. If any rating agency or its successor shall no longer be
in existence, “Rating Agency” shall include such nationally recognized
statistical rating agency or agencies, or other comparable Person or Persons,
as
shall have been designated by the Depositor, notice of which designation shall
be given to the Trustee and the Master Servicer.
29
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Record
Date”:
With
respect to each Distribution Date and the LIBOR Certificates, the Business
Day
preceding the applicable Distribution Date so long as such Certificates remain
Book-Entry Certificates and otherwise the Record Date shall be same as the
other
Classes of Certificates. For each other Class of Certificates, the last Business
Day of the calendar month preceding the month in which such Distribution Date
occurs.
“Recovery”:
With
respect to any Distribution Date and a Mortgage Loan that became a Liquidated
Mortgage Loan in the month preceding the month prior to that Distribution Date
and with respect to which the related Realized Loss was allocated to one or
more
Classes of Certificates, an amount received in respect of such Liquidated
Mortgage Loan during the prior calendar month, net of any reimbursable
expenses.
“Reference
Bank”:
A
leading bank engaged in transactions in Eurodollar deposits in the international
Eurocurrency market, which shall not control, be controlled by, or be under
common control with, the Securities Administrator and shall have an established
place of business in London. Until all of the LIBOR Certificates are paid in
full, the Securities Administrator will at all times retain at least four
Reference Banks for the purpose of determining LIBOR with respect to each LIBOR
Determination Date. The Securities Administrator initially shall designate
the
Reference Banks (after consultation with the Depositor). If any such Reference
Bank should be unwilling or unable to act as such or if the Securities
Administrator should terminate its appointment as Reference Bank, the Securities
Administrator shall promptly appoint or cause to be appointed another Reference
Bank (after consultation with the Depositor). The Securities Administrator
shall
have no liability or responsibility to any Person for (i) the selection of
any Reference Bank for purposes of determining LIBOR or (ii) any inability
to retain at least four Reference Banks which is caused by circumstances beyond
its reasonable control.
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Class A, Class X, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and
Class B-6 Certificate.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarifications and interpretations as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
30
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“Relevant
Servicing Criteria”:
The
Servicing Criteria applicable to each party, as set forth on Exhibit Q attached
hereto. Multiple parties can have responsibility for the same Relevant Servicing
Criteria. With respect to a Servicing Function Participant engaged by the Master
Servicer, the Securities Administrator, the Credit Risk Manager, the Custodian
or any Servicer, the term “Relevant Servicing Criteria” may refer to a portion
of the Relevant Servicing Criteria applicable to such parties.
“Relief
Act”:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not cause an Adverse REMIC Event.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Master Servicer’s Remittance Report to the Securities Administrator providing
information with respect to each Mortgage Loan which is provided no later than
the second Business Day following each Determination Date and which shall
contain such information as may be agreed upon by the Master Servicer and the
Securities Administrator and which shall be sufficient to enable the Securities
Administrator to prepare the related Distribution Date Statement.
31
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by the Servicers in respect of an REO Property
pursuant to the Servicing Agreements.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the Trust
Fund.
“REO
Imputed Interest”:
With
respect to any REO Property, for any calendar month during which such REO
Property was at any time part of the Trust Fund, one month’s interest at the
applicable Net Loan Rate for such REO Property on the Principal Balance of
such
REO Property (or, in the case of the first such calendar month, of the related
Mortgage Loan if appropriate) as of the Close of Business on the Due Date in
such calendar month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the Servicing Agreements in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable
or
reimbursable to the Servicers pursuant to the applicable provisions of the
Servicing Agreements for unpaid Master Servicing Fees and Servicing Fees in
respect of the related Mortgage Loan and unreimbursed Servicing Advances and
Advances in respect of such REO Property or the related Mortgage Loan, over
(b) the REO Imputed Interest in respect of such REO Property for such
calendar month.
“REO
Property”:
A
Mortgaged Property acquired by the Servicers on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in accordance with the applicable
provisions of the Servicing Agreements.
“Repurchase
Price”:
As
defined in the related Purchase Agreement.
“Reportable
Event”:
As
defined in Section 3.19(c).
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Required
Reserve Fund Deposit”:
With
respect to the Class X Certificates and any Distribution Date, an amount equal
to the lesser of (i) the Current Interest for the Class X Certificates for
such
Distribution Date and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund up to an amount equal to the Basis Risk
Shortfalls for such Distribution Date with respect to the LIBOR Certificates
(after giving effect to distributions of payments made pursuant to the Yield
Maintenance Agreement).
32
“Residential
Dwelling”:
Any
one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a condominium project, (iv) a manufactured home, (v) a cooperative unit or
(vi)
a detached one-family dwelling in a planned unit development, none of which
is a
mobile home.
“Residual
Certificate”:
The
Class A-R Certificate.
“Responsible
Officer”:
When
used with respect to the Trustee or any director, the President, any vice
president, any assistant vice president, any associate assigned to the Corporate
Trust Office (or similar group) or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and, with respect to a particular matter, to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject.
“Restricted
Classes”:
As
defined in Section 5.01(d).
“Restricted
Global Security”:
As
defined in Section 6.01.
“S&P”:
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc., or any successor thereto.
“Sarbanes
Oxley Act”:
The
Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations of the Commission
promulgated thereunder (including any interpretations thereof by the
Commission’s staff).
“Xxxxxxxx-Xxxxx
Certification”:
A
written certification signed by an officer of the Master Servicer that complies
with (i) the Xxxxxxxx-Xxxxx Act of 2002, as amended from time to time, and
(ii)
Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time;
provided that if, after the Closing Date (a) the Xxxxxxxx-Xxxxx Act of 2002
is
amended, (b) the Rules referred to in clause (ii) are modified or superseded
by
any subsequent statement, rule or regulation of the Commission or any statement
of a division thereof, or (c) any future releases, rules and regulations are
published by the Securities and Exchange Commission from time to time pursuant
to the Xxxxxxxx-Xxxxx Act of 2002, which in any such case affects the form
or
substance of the required certification and results in the required
certification being, in the reasonable judgment of the Master Servicer,
materially more onerous than the form of the required certification as of the
Closing Date, the Xxxxxxxx-Xxxxx Certification shall be as agreed to by the
Master Servicer, the Depositor and the Seller following a negotiation in good
faith to determine how to comply with any such new requirements.
“Securities
Act”:
The
Securities Act of 1933, as amended, and the rules and regulations
thereunder.
“Securities
Administrator”:
Xxxxx
Fargo Bank, N.A., or its successor in interest, or any successor securities
administrator appointed as herein provided.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
33
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any
one of the Class A, Class X or Class A-R Certificates.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
date on which the Class Principal Balance of each Class of Subordinate
Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to any Distribution Date, the percentage equivalent of a fraction (which
shall not be greater than 100%) the numerator of which is the aggregate of
the
Class Principal Balances of the Classes of Senior Certificates immediately
prior
to such Distribution Date and the denominator of which is the Pool Balance
for
that Distribution Date.
“Senior
Prepayment Percentage”:
With
respect to any Distribution Date before the Distribution Date in December 2016,
100%. Except as provided herein, the Senior Prepayment Percentage for any
Distribution Date occurring on or after the tenth anniversary of the first
Distribution Date will be as follows: (i) from December 2016 through
November 2017, the Senior Percentage plus 70% of the Subordinate Percentage
for
that Distribution Date; (ii) from December 2017 through
November 2018, the Senior Percentage plus 60% of the Subordinate Percentage
for
that Distribution Date; (iii) from December 2018 through
November 2019, the Senior Percentage plus 40% of the Subordinate Percentage
for
that Distribution Date; (iv) from December 2019 through
November 2020, the Senior Percentage plus 20% of the Subordinate Percentage
for
that Distribution Date; and (v) from and after December 2020, the Senior
Percentage for that Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage on a
Distribution Date unless the Step Down Conditions are satisfied with respect
to
such Distribution Date; and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in December
2020, the Senior Percentage exceeds the initial Senior Percentage, the Senior
Prepayment Percentage for that Distribution Date will again equal 100%.
Notwithstanding
the above, (i) if on any Distribution Date prior to December 2009 the Two Times
Test is satisfied, the Senior Prepayment Percentage will equal the Senior
Percentage for such Distribution Date plus 50% of the Subordinate Percentage
for
such Distribution Date and (ii) if
on any
Distribution Date in or after December 2009 the Two Times Test is satisfied,
the
Senior Prepayment Percentage will equal the Senior Percentage for such
Distribution Date.
“Senior
Principal Distribution Amount”:
With
respect to any Distribution Date, the sum of:
(1) the
Senior Percentage of all amounts described in clauses (a) through (d) and clause
(h) of the definition of “Principal Distribution Amount” for that Distribution
Date;
34
(2) with
respect to each Mortgage Loan which became a Liquidated Mortgage Loan during
the
related Prepayment Period, the lesser of
|
(x)
|
the
Senior Percentage of the Stated Principal Balance of that Mortgage
Loan;
and
|
|
(y)
|
the
Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds
allocable to principal received with respect to that Mortgage Loan
|
(3) the
Senior Prepayment Percentage of the amounts described in clauses (f) and (g)
of
the definition of “Principal Distribution Amount” for that Distribution
Date.
“Servicer”:
Each
of Xxxxxx, First Republic and GMAC as primary servicers of the Mortgage Loans
as
set forth and as individually defined in the Mortgage Loan Schedule hereto
and
any successors thereto.
“Servicer
Remittance Date”:
With
respect to each Mortgage Loan, the 18th
day of
each month, or if such 18th
day is
not a Business Day or if provided in the related Servicing Agreement, the
preceding Business Day.
“Servicing
Account”:
Any
account established and maintained for the benefit of the Master Servicer or
the
Trust Fund by a Servicer or with respect to the related Mortgage Loans and
any
REO Property, pursuant to the terms of the respective Servicing
Agreement.
“Servicing
Advances”:
With
respect to the Master Servicer (including the Trustee as successor Master
Servicer) and the Servicers, all customary, reasonable and necessary “out of
pocket” costs and expenses (including reasonable attorneys’ fees and expenses)
incurred by the Master Servicer (including the Trustee in its capacity as
successor Master Servicer) or the Servicers in the performance of its servicing
obligations hereunder, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the Mortgaged Property,
(ii) any enforcement or judicial proceedings, including foreclosures, (iii)
the
management and liquidation of the REO Property and (iv) any other expenses
permitted to be reimbursed as Servicing Advances under the Servicing
Agreements.
“Servicing
Agreement”:
Each
reconstituted servicing agreement set forth on Exhibit M hereto and relating
to
a Servicer and the servicing of the related Mortgage Loans by such Servicer,
as
the same may be amended from time to time.
“Servicing
Criteria”:
The
criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such
may
be amended from time to time.
“Servicing
Fee”:
With
respect to each Servicer and each Mortgage Loan serviced by such Servicer and
for any calendar month, the fee payable to the Servicer determined pursuant
to
the applicable Servicing Agreement.
35
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum rate of 0.375%.
“Servicing
Function Participant”:
Any
Subservicer or Subcontractor of a Servicer, the Master Servicer, the Custodian
or the Securities Administrator, respectively.
“Servicing
Officer”: Any
officer of the Master Servicer or the Servicers involved in, or responsible
for,
the administration and servicing (or master servicing) of Mortgage Loans, whose
name and specimen signature appear on a list of servicing officers furnished
by
the Master Servicer to the Trustee, the Custodian and the Depositor on the
Closing Date, as such list may from time to time be amended.
“Six-Month
LIBOR”:
The
average of interbank offered rates for six-month U.S. dollar deposits in the
London market based on quotations of major banks.
“Six-Month
LIBOR Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the Six-Month LIBOR index.
“Sponsor”:
Greenwich Capital Financial Products, Inc., in its capacity as sponsor under
this Agreement.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of the Distribution Date in December 2006,
the Cut-Off Date Principal Balance of such Mortgage Loan, (b) thereafter
as of any date of determination up to and including the Distribution Date on
which the proceeds, if any, of a Liquidation Event with respect to such Mortgage
Loan would be distributed, the Cut-Off Date Principal Balance of such Mortgage
Loan minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date, whether or
not
received, (ii) all Principal Prepayments received after the Cut-Off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the Servicers as recoveries of principal in accordance with the
applicable provisions of the Servicing Agreement, to the extent distributed
pursuant to Section 5.01 before such date of determination; and (c) as of
any date of determination subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan
would be distributed, zero. With respect to any REO Property: (x) as of any
date of determination up to and including the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, an amount (not less than zero) equal to the Stated Principal
Balance of the related Mortgage Loan as of the date on which such REO Property
was acquired on behalf of the Trust Fund, minus the aggregate amount of REO
Principal Amortization in respect of such REO Property for all previously ended
calendar months, to the extent distributed pursuant to Section 5.01 before
such date of determination; and (y) as of any date of determination
subsequent to the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be distributed,
zero.
36
“Step
Down Conditions”:
With
respect to any Distribution Date on which any decrease in any Senior Prepayment
Percentage may apply, (i) the outstanding Principal Balance of all Mortgage
Loans 60 days or more Delinquent (including related Mortgage Loans in REO and
foreclosure) (averaged over the preceding six month period), as a percentage
of
the aggregate of the Class Principal Balances of the Classes of Subordinate
Certificates on such Distribution Date, does not equal or exceed 50% and
(ii) cumulative Realized Losses with respect to all of the Mortgage Loans
do not exceed:
|
·
|
for
any Distribution Date on or after the seventh anniversary until the
eighth
anniversary of the first Distribution Date, 30% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the eighth anniversary until the
ninth
anniversary of the first Distribution Date, 35% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the ninth anniversary until the
tenth
anniversary of the first Distribution Date, 40% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date,
|
|
·
|
for
any Distribution Date on or after the tenth anniversary until the
eleventh
anniversary of the first Distribution Date, 45% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as
of the
Closing Date, and
|
|
·
|
for
any Distribution Date on or after the eleventh anniversary of the
first
Distribution Date, 50% of the aggregate Certificate Principal Balance
of
the Subordinate Certificates as of the Closing
Date.
|
“Strike
Rate”:
With
respect to any Distribution Date and the Yield Maintenance Agreement, the strike
rate for such date set forth on Exhibit I of the Yield Maintenance
Agreement.
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing of Mortgage Loans but performs one or more discrete functions
identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans
under
the direction or authority of any Servicer (or a Subservicer of any Servicer),
the Master Servicer, the Custodian, the Credit Risk Manager, the Trustee or
the
Securities Administrator.
“Subordinate
Certificate”:
Any
one of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class B-6
Certificates.
“Subordinate
Percentage”:
With
respect to any Distribution Date, the difference between 100% and the Senior
Percentage for such Distribution Date.
“Subordinate
Prepayment Percentage”:
With
respect to any Distribution Date, the difference between 100% and the Senior
Prepayment Percentage for that Distribution Date.
37
“Subordinate
Principal Distribution Amount”:
With
respect to any Distribution Date, an amount equal to the sum of:
(1)
the
Subordinate Percentage of all amounts described in clauses (a) through (d)
and
clause (h) of the definition of “Principal Distribution Amount” for that
Distribution Date;
(2) with
respect to each Mortgage Loan that became a Liquidated Mortgage Loan during
the
related Prepayment Period, the amount of the Net Liquidation Proceeds allocated
to principal received with respect thereto remaining after application thereof
pursuant to clause (2) of the definition of “Senior Principal Distribution
Amount” for such Distribution Date, up to the Subordinate Percentage of the
Stated Principal Balance of such Mortgage Loan; and
(3) the
Subordinated Prepayment Percentage of all amounts described in clause (f) of
the
definition of “Principal Distribution Amount” for that Distribution
Date;
“Subservicer”:
Any
person that services Mortgage Loans on behalf of a Servicer, the Master
Servicer, the Securities Administrator or the Custodian, and is responsible
for
the performance (whether directly or through sub-servicers or Subcontractors)
of
servicing functions required to be performed under this Agreement, any related
Servicing Agreement or any sub-servicing agreement that are identified in Item
1122(d) of Regulation AB.
“Substitution
Adjustment”:
As
defined in Section 2.03(f) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
each of the REMICs created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be required to be
furnished to the Certificateholders or filed with the Internal Revenue Service
or any other governmental taxing authority under any applicable provisions
of
federal, state or local tax laws.
“Telerate
Page 3750”:
The
display currently so designated as “Page 3750” on the Bridge Telerate Service
(or such other page selected by the Securities Administrator as may replace
Page
3750 on that service for the purpose of displaying daily comparable rates on
prices).
“10-K
Filing Deadline”:
As
defined in Section 3.19(b).
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Terminator”:
As
defined in Section 10.01(a) hereof.
“Transaction
Xxxxxxxx Xxxxxxxxxx 0000-00”:
The
transaction addendum dated as of December 13, 2006, by and between Greenwich
Capital Markets, Inc. and the Credit Risk Manager, and acknowledged by the
Trustee, relating to the transaction contemplated by this
Agreement.
38
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in the Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust”:
HarborView Mortgage Loan Trust 2006-13, the trust created
hereunder.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, such Trust Fund consisting of:
(i) such Mortgage Loans as from time to time are subject to this Agreement,
together with the Mortgage Files relating thereto, and together with all
collections thereon and proceeds thereof, (ii) any REO Property, together
with all collections thereon and proceeds thereof, (iii) the Trustee’s
rights with respect to the Mortgage Loans under all insurance policies required
to be maintained pursuant to this Agreement and any proceeds thereof,
(iv) the Depositor’s rights under the Mortgage Loan Purchase Agreement
(including any security interest created thereby); (v) the Distribution
Account (subject to the last sentence of this definition), any REO Account
and
such assets that are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments with respect
thereto; (vi) all right, title and interest of the Seller in and to each of
the Servicing Agreements; (vii) the Basis Risk Reserve Fund, the Final Maturity
Reserve Fund, the Yield Maintenance Account and the Collateral Account; (viii)
the rights of the Trust Fund under the Yield Maintenance Agreements; and (ix)
all proceeds of the foregoing. Notwithstanding the foregoing, however, the
Trust
Fund specifically excludes (1) all payments and other collections of
interest and principal due on the Mortgage Loans on or before the Cut-Off Date
and principal received before the Cut-Off Date (except any principal collected
as part of a payment due after the Cut-Off Date) and (2) all income and
gain realized from Permitted Investments of funds on deposit in the Distribution
Account.
“Trustee”:
Deutsche Bank National Trust Company, not in its individual capacity but solely
as trustee, a national banking association, its successors or assigns, or any
successor trustee appointed as herein provided.
“Trustee
Fee”:
The
annual on-going fee as agreed to by and payable by the Master Servicer on behalf
of the Trust Fund to the Trustee from the Master Servicer Fee or other funds
of
the Master Servicer.
“Two
Times Test”:
As to
any Distribution Date, (i) the Aggregate Subordinate Percentage is at least
two
times the Aggregate Subordinate Percentage as of the Closing Date; (ii) the
aggregate of the Principal Balances of all Mortgage Loans Delinquent 60 days
or
more (including Mortgage Loans in REO and foreclosure) (averaged over the
preceding six-month period), as a percentage of the aggregate of the Class
Principal Balances of the Subordinate Certificates, does not equal or exceed
50%; and (iii) on or after the Distribution Date in December 2009, cumulative
Realized Losses do not exceed 30% of the Original Subordinated Principal Balance
or prior to the Distribution Date in December 2009, cumulative Realized Losses
do not exceed 20% of the Original Subordinated Principal Balance.
39
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by PTE 97-34 (Exemption Application No. D-10245 and D-10246) and by
PTE
2000-58 (Exemption Application No. D-10829) and PTE 2002-41 (Exemption
Application No. D-11077), as amended (or any successor thereto), or any
substantially similar administrative exemption granted by the U.S. Department
of
Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
“United
States Person”
or
“U.S.
Person”:
The
term shall have the meaning set forth in Section 7701(a)(30) of the Code or
successor provisions.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Xxxxxx Xxx and Xxxxxxx Mac; and
(ii) the
purchase price paid for the related Mortgaged Property by the Mortgagor with
the
proceeds of the Mortgage Loan;
provided,
however,
that in
the case of a Refinancing Mortgage Loan, such value of the Mortgaged Property
is
based solely upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an appraiser
who
met the minimum requirements of Xxxxxx Mae and Xxxxxxx Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 98% of the voting rights shall be allocated among the Classes
of Regular Certificates (other than the Class A-R, Class P and Class X
Certificates), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding; 1% of the voting rights shall
be
allocated to the Holders of the Class X Certificates and 1% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance, as applicable, of each Certificate of such Class
and the denominator of which is the Class Principal Balance or Class Notional
Balance, as applicable, of such Class; provided,
further,
that
any Certificate registered in the name of the Master Servicer, the Securities
Administrator or the Trustee or any of their respective affiliates shall not
be
included in the calculation of Voting Rights. The Class P Certificates shall
have no voting rights.
40
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“Yield
Maintenance Account”:
The
account established and maintained by the Securities Administrator pursuant
to
Section 4.04, which shall be entitled “Yield Maintenance Account, Xxxxx Fargo
Bank, N.A., as Securities Administrator for Deutsche Bank National Trust
Company, as Trustee, in trust for the registered Holders of HarborView Mortgage
Loan Trust, Mortgage Loan Pass-Through Certificates, Series 2006-13” and which
must be an Eligible Account.
“Yield
Maintenance Agreement”:
The
interest rate cap agreement by and between the Yield Maintenance Provider and
the Securities Administrator, on behalf of the Trust Fund, including the ISDA
Master Agreement between the Yield Maintenance Provider and the Securities
Administrator, the schedule thereto and the related confirmation (Ref. No.
FXHMLT613A), dated as of December 13, 2006, a copy of which is attached as
Exhibit X hereto.
“Yield
Maintenance Distributable Amount”:
With
respect to each Distribution Date and the LIBOR Certificates, an amount equal
to
the product of (i) the excess, if any, of (x) LIBOR, subject to the applicable
strike rate cap set forth on Schedule I to the Yield Maintenance Agreement
over
(y) the applicable Strike Rate, (ii) the related Yield Maintenance Notional
Balance and (iii) a fraction, the numerator of which is the actual number days
in the related interest Accrual Period and the denominator of which is
360.
“Yield
Maintenance Notional Balance”:
For
any Distribution Date, the lesser of (i) the amount set forth on Schedule I
to
the Yield Maintenance Agreement and (ii) the aggregate Class Principal Balance
of the LIBOR Certificates.
“Yield
Maintenance Payments”:
The
payment remitted to the Securities Administrator by the Yield Maintenance
Provider under any Yield Maintenance Agreement.
“Yield
Maintenance Provider”:
Bear
Xxxxxxx Financial Products Inc., its successors and assigns or any successor
Yield Maintenance Provider.
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
41
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders all the right, title and interest
of
the Depositor, including any security interest therein for the benefit of the
Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan
Schedule, including the related Cut-Off Date Principal Balance, all interest
due
thereon after the Cut-Off Date and all collections in respect of interest and
principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and
interest in and to the Distribution Account and all amounts from time to time
credited to and the proceeds of the Distribution Account; (iii) any real
property that secured each such Mortgage Loan and that has been acquired by
foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any
insurance policies in respect of the Mortgage Loans; (v) all proceeds of any
of
the foregoing; and (vi) all other assets included or to be included in the
Trust
Fund. Such assignment includes all interest and principal due to the Depositor
or the Master Servicer after the Cut-Off Date with respect to the Mortgage
Loans. In exchange for such transfer and assignment, the Depositor shall receive
the Certificates.
On
or
prior to the Closing Date, the Depositor shall cause the Yield Maintenance
Provider to enter into the Yield Maintenance Agreement with the Securities
Administrator. The Depositor hereby directs the Securities Administrator to
execute, not in its individual capacity, but solely as Securities Administrator
on behalf of the Trust Fund, and deliver the Yield Maintenance Agreements.
It
is
agreed and understood by the Depositor, the Seller and the Trustee that it
is
not intended that any Mortgage Loan be included in the Trust Fund that is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective
as of November 27, 2003, or The Home Loan Protection Act of New Mexico,
effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act, effective as
of
November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as
defined in the Indiana High Cost Home Loan Act, effective as of January 1,
2005.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreements to the extent assigned in the Mortgage Loan Purchase Agreement.
The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Purchase Agreement and all
rights of the Seller under each Servicing Agreement as if, for such purpose,
it
were the Depositor or the Seller, as applicable, including the Seller’s right to
enforce remedies for breaches of representations and warranties and delivery
of
the Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
42
In
connection with such transfer and assignment, the Seller, on behalf of the
Depositor, does hereby deliver on the Closing Date, unless otherwise specified
in this Section 2.01, to, and deposit with the Trustee, or the Custodian as
its
designated agent, the following documents or instruments with respect to each
Mortgage Loan (a “Mortgage
File”)
so
transferred and assigned:
|
(i)
|
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of Deutsche
Bank National Trust Company, as Trustee for HarborView Mortgage Loan
Trust
Mortgage Loan Pass-Through Certificates, Series 2006-13, without
recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost,
misplaced
or destroyed, together with a copy of the related mortgage note;
provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off
Date Principal Balance of which is less than or equal to 2% of the
Cut-Off
Date Aggregate Principal Balance;
|
|
(ii)
|
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, and in the case of each MERS Mortgage
Loan,
the original Mortgage, noting the presence of the MIN for that Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan
if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was
not a MOM
Loan at origination, the original Mortgage and the assignment to
MERS, in
each case with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage
or power
of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not
otherwise available, a certified copy of such Mortgage or power of
attorney, as the case may be, and that the original of such Mortgage
has
been forwarded to the public recording office, or, in the case of
a
Mortgage that has been lost, a copy thereof (certified as provided
for
under the laws of the appropriate jurisdiction) and a written Opinion
of
Counsel (delivered at the Seller’s expense) acceptable to the Trustee and
the Depositor that an original recorded Mortgage is not required
to
enforce the Trustee’s interest in the Mortgage
Loan;
|
|
(iii)
|
the
original or copy of each assumption, modification or substitution
agreement, if any, relating to the Mortgage Loans, or, as to any
assumption, modification or substitution agreement which cannot be
delivered on or prior to the Closing Date because of a delay caused
by the
public recording office where such assumption, modification or
substitution agreement has been delivered for recordation, a photocopy
of
such assumption, modification or substitution agreement, pending
delivery
of the original thereof, together with an Officer’s Certificate of the
Seller certifying that the copy of such assumption, modification
or
substitution agreement delivered to the Trustee (or its custodian)
on
behalf of the Trust Fund is a true copy and that the original of
such
agreement has been forwarded to the public recording
office;
|
43
|
(iv)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment, in form and substance acceptable for recording.
The
Mortgage shall be assigned to “Deutsche Bank National Trust Company, as
Trustee for HarborView Mortgage Loan Trust Mortgage Loan Pass-Through
Certificates, Series 2006-13, without
recourse;”
|
|
(v)
|
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening Assignment showing a complete chain
of
assignments, or, in the case of an intervening Assignment that has
been
lost, a written Opinion of Counsel (delivered at the Seller’s expense)
acceptable to the Trustee that such original intervening Assignment
is not
required to enforce the Trustee’s interest in the Mortgage
Loans;
|
|
(vi)
|
the
original Primary Insurance Policy, if any, or certificate, if
any;
|
|
(vii)
|
the
original or a certified copy of lender’s title insurance policy;
and
|
|
(viii)
|
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
|
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the applicable Servicer to take), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), such actions as are necessary to cause the MERS® System to indicate
that such Mortgage Loans have been assigned by the Seller to the Trustee in
accordance with this Agreement for the benefit of the Certificateholders by
including (or deleting, in the case of Mortgage Loans that are repurchased
in
accordance with this Agreement) in such computer files the information required
by the MERS® System to identify the series of the Certificates issued in
connection with the transfer of such Mortgage Loans to the HarborView Mortgage
Loan Trust 2006-13. Notwithstanding anything herein to the contrary, the Master
Servicer and Securities Administrator are not responsible for monitoring any
MERS Mortgage Loans.
With
respect to each Cooperative Loan the Seller, on behalf of the Depositor does
hereby deliver to the Trustee (or the Custodian) the related Cooperative Loan
Documents and the Seller shall take (or cause the applicable Servicer to take),
at the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary under applicable law
(including but not limited to the relevant UCC) in order to perfect the interest
of the Trustee in the related Mortgaged Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust Fund or the
Trustee) acceptable to the Trustee, each Rating Agency, recording in such states
is not required to protect the Trust Fund’s interest in the related Mortgage
Loans; provided,
further,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the applicable Servicer to submit each such assignment for recording),
at
the cost and expense of the Seller, in the manner described above, at no expense
to the Trust Fund or Trustee, upon the earliest to occur of (1) reasonable
direction by the Majority Certificateholders, (2) the occurrence of a bankruptcy
or insolvency relating to the Seller or the Depositor, or (3) with respect
to
any one Assignment of Mortgage, the occurrence of a bankruptcy, insolvency
or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the applicable Servicer to properly record), at the expense
of
the Seller (with the cooperation of the Depositor, the Trustee and the Master
Servicer), in each public recording office where the related Mortgages are
recorded, each assignment referred to in Section 2.01(v) above with respect
to a
Mortgage Loan that is not a MERS Mortgage Loan.
44
The
Trustee (or the Custodian on its behalf) agrees to execute and deliver to the
Depositor on or prior to the Closing Date an acknowledgment of receipt of the
original Mortgage Note (with any exceptions noted), substantially in the form
attached as Exhibit G-1 hereto.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(vii) above, the Seller shall deliver or
cause
to be delivered to the Trustee the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee (or the Custodian on its behalf), promptly upon receipt thereof,
but
in any case within 175 days of the Closing Date. The Seller shall deliver or
cause to be delivered to the Trustee (or the Custodian on its behalf), promptly
upon receipt thereof, any other documents constituting a part of a Mortgage
File
received with respect to any Mortgage Loan sold to the Depositor by the Seller,
including, but not limited to, any original documents evidencing an assumption
or modification of any Mortgage Loan.
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, in lieu of the Seller delivering the above
documents, the applicable Servicer shall deliver to the Trustee, or to the
Custodian on behalf of the Trustee, prior to the first Distribution Date, an
Officer’s Certificate which shall include a statement to the effect that all
amounts received in connection with such prepayment that are required to be
deposited in the Distribution Account have been so deposited. All original
documents that are not delivered to the Trustee on behalf of the Trust Fund
shall be held by the Master Servicer or the applicable Servicer in trust for
the
Trustee, for the benefit of the Trust Fund and the
Certificateholders.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
The
Depositor shall have the right to receive any and all loan-level information
regarding the characteristics and performance of the Mortgage Loans upon
request, and to publish, disseminate or otherwise utilize such information
in
its discretion, subject to applicable laws and regulations.
45
SECTION
2.02. Acceptance
by Trustee.
The
Trustee hereby accepts its appointment as Custodian hereunder and acknowledges
the receipt, subject to the provisions of Section 2.01 and subject to the review
described below and any exceptions noted on the exception report described
in
the next paragraph below, of the documents referred to in Section 2.01 above
and
all other assets included in the definition of “Trust Fund” and declares that,
in its capacity as Custodian, it holds and will hold such documents and the
other documents delivered to it constituting a Mortgage File, and that it holds
or will hold all such assets and such other assets included in the definition
of
“Trust Fund” in trust for the exclusive use and benefit of all present and
future Certificateholders.
The
Trustee (or the Custodian on its behalf) shall, for the benefit of the
Certificateholders, review each Mortgage File delivered to it and to certify
and
deliver to the Depositor, the Seller and each Rating Agency an interim
certification in substantially the form attached hereto as Exhibit G-2, within
90 days after the Closing Date (or, with respect to any document delivered
after
the Startup Day, within 45 days of receipt and with respect to any Qualified
Substitute Mortgage, within five Business Days after the assignment thereof)
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or any Mortgage Loan specifically identified
in
the exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered and reviewed by
it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (iii) of the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, the Trustee
(or
the Custodian on its behalf) is under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
No
later
than 180 days after the Closing Date, the Trustee shall deliver to the Depositor
and the Seller a final certification in the form annexed hereto as Exhibit
G-3
evidencing the completeness of the Mortgage Files, with any applicable
exceptions noted thereon.
If,
in
the process of reviewing the Mortgage Files and making or preparing, as the
case
may be, the certifications referred to above, the Trustee finds any document
or
documents constituting a part of a Mortgage File to be missing or not conforming
to the requirements set forth herein, at the conclusion of its review the
Trustee (or the Custodian on its behalf) shall promptly notify the Seller and
the Depositor. In addition, upon the discovery by the Seller or the Depositor
(or upon receipt by the Trustee of written notification of such breach) of
a
breach of any of the representations and warranties made by the Seller in the
Mortgage Loan Purchase Agreement in respect of any Mortgage Loan that materially
adversely affects such Mortgage Loan or the interests of the related
Certificateholders in such Mortgage Loan, the party discovering such breach
shall give prompt written notice to the other parties to this
Agreement.
46
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee and that such property
not be part of the Depositor’s estate or property of the Depositor in the event
of any insolvency by the Depositor. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the parties intend that the
Depositor shall be deemed to have granted and does hereby grant to the Trustee
a
first priority perfected security interest in all of the Depositor’s right,
title and interest in and to the Mortgage Loans, the related Mortgage Notes
and
the related documents, and that this Agreement shall constitute a security
agreement under applicable law.
The
Trustee is hereby authorized and directed by the Depositor to execute and
deliver Transaction Xxxxxxxx Xxxxxxxxxx 0000-00 to the Master Consulting
Agreement with the Credit Risk Manager.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originators and the
Seller.
(a) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
related Originator of any representation, warranty or covenant under the related
Purchase Agreement in respect of any Mortgage Loan which materially adversely
affects the value of that Mortgage Loan or the interest therein of the
Certificateholders, the Trustee shall promptly notify such Originator of such
defect, missing document or breach and request that such Originator deliver
such
missing document or cure such defect or breach within 90 days from the date
that
the Seller was notified of such missing document, defect or breach, and if
such
Originator does not deliver such missing document or cure such defect or breach
in all material respects during such period, the Trustee shall enforce such
Originator’s obligation under the related Purchase Agreement and cause such
Originator to repurchase that Mortgage Loan from the Trust Fund at the
Repurchase Price (as defined in the related Purchase Agreement) on or prior
to
the Determination Date following the expiration of such 90 day period. It is
understood and agreed that the obligation of the related Originator to cure
or
to repurchase or to substitute for (or, with respect to any costs and damages
incurred by the Trust Fund in connection with any violation of any
anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage Loan
as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against such Originator respecting such omission,
defect or breach available to the Trustee on behalf of the
Certificateholders.
(b) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Seller of any representation, warranty or covenant under the Mortgage Loan
Purchase Agreement or in Section 2.04 or Section 2.08 hereof in respect of
any Mortgage Loan which materially adversely affects the value of that Mortgage
Loan or the interest therein of the Certificateholders, the Trustee shall
promptly notify the Seller of such noncompliance, missing document or breach
and
request that the Seller deliver such missing document or cure such noncompliance
or breach within 90 days from the date that the Seller was notified of such
missing document, noncompliance or breach, and if the Seller does not deliver
such missing document or cure such noncompliance or breach in all material
respects during such period, the Trustee shall enforce the Seller’s obligation
under the Mortgage Loan Purchase Agreement and cause the Seller to repurchase
that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to
the
Determination Date following the expiration of such 90 day period (subject
to
Section 2.03(e) below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Section 2.04 hereof, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans for the Purchase Price or, if
the
Mortgage Loan or the related Mortgaged Property acquired with respect thereto
has been sold, then the Seller shall pay, in lieu of the Purchase Price, any
excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale.
47
(c) The
Purchase Price or Repurchase Price (as defined in the related Purchase
Agreement) for a Mortgage Loan purchased or repurchased under this Section
2.03
or such other amount due shall be deposited in the Distribution Account on
or
prior to the next Determination Date after the Seller’s or the related
Originator’s obligation to repurchase such Mortgage Loan arises. The Trustee (or
the Custodian on its behalf), upon receipt of written certification from the
Seller or related Originator of the related deposit in the Distribution Account,
shall release to the Seller or the related Originator, as applicable, the
related Mortgage File and shall execute and deliver such instruments of transfer
or assignment, in each case without recourse, as the Seller or the related
Originator, as applicable, shall furnish to it and as shall be necessary to
vest
in the Seller or the related Originator, as applicable, any Mortgage Loan
released pursuant hereto and the Trustee (or the Custodian on its behalf) shall
have no further responsibility with regard to such Mortgage File (it being
understood that the Trustee (or the Custodian on its behalf) shall have no
responsibility for determining the sufficiency of such assignment for its
intended purpose). In lieu of repurchasing any such Mortgage Loan as provided
above, the Seller may cause such Mortgage Loan to be removed from the Trust
Fund
(in which case it shall become a Deleted Mortgage Loan) and substitute one
or
more Qualified Substitute Mortgage Loans in the manner and subject to the
limitations set forth in Section 2.03(d) below. It is understood and agreed
that
the obligation of the Seller to cure or to repurchase or to substitute for
(or,
with respect to any costs and damages incurred by the Trust Fund in connection
with any violation of any anti-predatory or anti-abusive lending laws, indemnify
for) any Mortgage Loan as to which a document is missing, a material defect
in a
constituent document exists or as to which such a breach has occurred and is
continuing shall constitute the sole remedy against the Seller respecting such
omission, defect or breach available to the Trustee on behalf of the
Certificateholders.
(d) Notwithstanding
anything to the contrary set forth above, with respect to any breach by the
Seller of a representation or warranty made by the Seller herein or in the
Mortgage Loan Purchase Agreement that materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans or the interest therein of the
Certificateholders, if the Seller would not be in breach of such representation
or warranty but for a breach by the related Originator of a representation
and
warranty made by such Originator in the related Purchase Agreement, then related
the Originator thereunder, in the manner and to the extent set forth therein,
and not the Seller, shall be required to remedy such breach. In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Trust Fund and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in Section
2.04.
48
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of missing or defective documentation
or
on account of a breach of a representation, warranty or covenant as described
in
this Section 2.03(c).
(e) If
pursuant to the provisions of Section 2.03(b), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall take (or shall cause the applicable Servicer to take),
at
the expense of the Seller (with the cooperation of the Depositor, the Trustee
and the Master Servicer), such actions as are necessary either (i) cause MERS
to
execute and deliver an Assignment of Mortgage in recordable form to transfer
the
Mortgage from MERS to the Seller and shall cause such Mortgage to be removed
from registration on the MERS® System in accordance with MERS’ rules and
regulations or (ii) cause MERS to designate on the MERS® System the Seller or
its designee as the beneficial holder of such Mortgage Loan.
(f) [Reserved].
(g) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Loans, such substitution shall be effected by the Seller delivering
to
the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage
Note, the Mortgage, the Assignment to the Trustee, and such other documents
and
agreements, with all necessary endorsements thereon, as are required by Section
2.01 hereof, together with an Officers’ Certificate stating that each such
Qualified Substitute Mortgage Loan satisfies the definition thereof and
specifying the Substitution Adjustment (as described below), if any, in
connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Trustee (or the Custodian on its behalf), shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and, within five
Business Days thereafter, shall review such documents as specified in Section
2.02 hereof and deliver to the related Servicer, with respect to such Qualified
Substitute Mortgage Loan or Loans, a certification substantially in the form
attached hereto as Exhibit G-2, with any exceptions noted thereon. Within 180
days of the date of substitution, the Trustee (or the Custodian on its behalf),
shall deliver to the Seller and the Master Servicer a certification
substantially in the form of Exhibit G-3 hereto with respect to such Qualified
Substitute Mortgage Loan or Loans, with any exceptions noted thereon. Monthly
Payments due with respect to Qualified Substitute Mortgage Loans in the month
of
substitution are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to Certificateholders will reflect
the collections and recoveries in respect of such Deleted Mortgage Loan in
the
Due Period preceding the month of substitution and the Depositor or the Seller,
as the case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan. The Seller
shall
give or cause to be given written notice to the Certificateholders that such
substitution has taken place, shall amend the Mortgage Loan Schedule to reflect
the removal of such Deleted Mortgage Loan from the terms of this Agreement
and
the substitution of the Qualified Substitute Mortgage Loan or Loans and shall
deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the
Custodian, the Master Servicer and the Securities Administrator. Upon such
substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute
part of the Trust Fund and shall be subject in all respects to the terms of
this
Agreement and, in the case of a substitution effected by the Seller, the
Mortgage Loan Purchase Agreement, including, in the case of a substitution
effected by the Seller all representations and warranties thereof included
in
the Mortgage Loan Purchase Agreement and all representations and warranties
thereof set forth in Section 2.04 hereof, in each case as of the date of
substitution.
49
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to the amount
(each, a “Substitution Adjustment”), if any, by which the aggregate Purchase
Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each
such
Qualified Substitute Mortgage Loan, of the principal balance thereof as of
the
date of substitution, together with one month’s interest on such principal
balance at the applicable Net Loan Rate. On or prior to the next Determination
Date after the Seller’s obligation to repurchase the related Deleted Mortgage
Loan arises, the Seller will deliver or cause to be delivered to the Securities
Administrator for deposit in the Distribution Account an amount equal to the
related Substitution Adjustment, if any, and the Custodian, on behalf of the
Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or
Loans, and a written certification from the Seller of its remittance of the
deposit to the Distribution Account, shall release to the Seller the related
Mortgage File or Files and shall execute and deliver such instruments of
transfer or assignment, in each case without recourse, as the Seller shall
deliver to it and as shall be necessary to vest therein any Deleted Mortgage
Loan released pursuant hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC Event. If such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
(h) Upon
discovery by the Seller, the Master Servicer, the Depositor or the Trustee
that
any Mortgage Loan does not constitute a “qualified mortgage” within the meaning
of Section 860G(a)(3) of the Code, the party discovering such fact shall within
two Business Days give written notice thereof to the other parties. In
connection therewith, the Seller shall repurchase or, subject to the limitations
set forth in Section 2.03(e), substitute one or more Qualified Substitute
Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier
of
discovery or receipt of such notice with respect to such affected Mortgage
Loan.
Any such repurchase or substitution shall be made in the same manner as set
forth in Section 2.03(b) above, if made by the Seller. The Trustee shall
reconvey to the Seller the Mortgage Loan to be released pursuant hereto in
the
same manner, and on the same terms and conditions, as it would a Mortgage Loan
repurchased for breach of a representation or warranty.
50
(i) Notwithstanding
the foregoing, to the extent that any fact, condition or event with respect
to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty
of
the applicable Originator under the applicable Purchase Agreement and (ii)
a
representation or warranty of the Seller under this Agreement, in each case,
which materially adversely affects the value of such Mortgage Loan or the
interest therein of the Certificateholders, the Trustee shall first request
that
the Originator cure such breach or repurchase such Mortgage Loan and if the
Originator fails to cure such breach or repurchase such Mortgage Loan within
60
days of receipt of such request from the Trustee, the Trustee shall then request
that the Seller cure such breach or repurchase such Mortgage Loans.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans.
The
Seller hereby makes the following representations and warranties to the Trustee
on behalf of the Certificateholders as of the Closing Date with respect to
the
Mortgage Loans:
(i) Any
and
all requirements of any federal, state or local law including, without
limitation, usury, truth in lending, real estate settlement procedures,
predatory and abusive lending, consumer credit protection, equal credit
opportunity, fair housing or disclosure laws applicable to the origination
and
servicing of mortgage loans of a type similar to the Mortgage Loans at
origination have been complied with;
(ii) No
Mortgage Loan is (a)(1) subject to the provisions of the Homeownership and
Equity Protection Act of 1994 as amended (“HOEPA”) or (2) has an annual
percentage rate (“APR”) or total points and fees that are equal to or exceeds
the HOEPA thresholds (as defined in 12 CFR 226.32 (a)(1)(i) and (ii)), (b)
a
“high cost” mortgage loan, “covered” mortgage loan, “high risk home” mortgage
loan, or “predatory” mortgage loan or any other comparable term, no matter how
defined under any federal, state or local law, (c) subject to any comparable
federal, state or local statutes or regulations, or any other statute or
regulation providing for assignee liability to holders of such mortgage loans,
or (d) a High Cost Loan or Covered Loan, as applicable (as such terms are
defined in the then current Standard & Poor’s LEVELS® Glossary Revised,
Appendix E). In addition, no Mortgage Loan originated on or after October 1,
2002 through March 6, 2003 is governed by the Georgia Fair Lending Act;
and
(iii) With
respect to each representation and warranty with respect to any Mortgage Loan
made by the Originator in the Purchase Agreement that is made as of the related
Closing Date (as defined in the related Purchase Agreement), to the Seller’s
knowledge, no event has occurred since the related Closing Date (as defined
in
the related Purchase Agreement) that would render such representations and
warranties to be untrue in any material respect as of the Closing
Date.
51
With
respect to the representations and warranties incorporated in this Section
2.04
that are made to the best of the Seller’s knowledge or as to which the Seller
has no knowledge, if it is discovered by the Depositor, the Seller, the Master
Servicer or the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects the value
of
the related Mortgage Loan or the interest therein of the Certificateholders
then, notwithstanding the Seller’s lack of knowledge with respect to the
substance of such representation and warranty being inaccurate at the time
the
representation or warranty was made, such inaccuracy shall be deemed a breach
of
the applicable representation or warranty.
It
is
understood and agreed that the representations and warranties incorporated
in
this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee
and shall inure to the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon discovery by any of
the
Depositor, the Seller, the Master Servicer or the Trustee of a breach of any
of
the foregoing representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of the
Certificateholders, the party discovering such breach shall give prompt written
notice to the other parties, and in no event later than two Business Days from
the date of such discovery. It is understood and agreed that the obligations
of
the Seller set forth in Section 2.03(b) hereof to cure, substitute for or
repurchase (or, with respect to any costs and damages incurred by the trust
fund
in connection with any violation of any anti-predatory or anti-abusive lending
laws, indemnify for) a related Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a breach of
the
representations and warranties incorporated in this Section 2.04.
SECTION
2.05. [Reserved].
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trust Fund and the Trustee on behalf
of
the Certificateholders and to as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust Fund of each Mortgage Loan, the Depositor had good and marketable
title to each Mortgage Loan (insofar as such title was conveyed to it by the
Seller) subject to no prior lien, claim, participation interest, mortgage,
security interest, pledge, charge or other encumbrance or other interest of
any
nature;
52
(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust Fund;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust Fund with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
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SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it of the Mortgage Files, subject to the provisions of Sections 2.01 and
2.02 hereof, together with the assignment to it of all other assets included
in
the Trust Fund, receipt of which is hereby acknowledged. Concurrently with
such
assignment and delivery and in exchange therefor, the Securities Administrator,
pursuant to the written request of the Depositor executed by an officer of
the
Depositor, has caused to be executed, authenticated and delivered to or upon
the
order of the Depositor, the Certificates in authorized denominations. The
interests evidenced by the Certificates constitute the entire beneficial
ownership interest in the Trust Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trustee on behalf of the
Certificateholders that, as of the Closing Date or as of such date specifically
provided herein:
(i) The
Seller is duly organized, validly existing and in good standing and has the
power and authority to own its assets and to transact the business in which
it
is currently engaged. The Seller is duly qualified to do business and is in
good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure to so qualify would have a material adverse effect on (a)
its
business, properties, assets or condition (financial or other), (b) the
performance of its obligations under this Agreement, or (c) the value or
marketability of the Mortgage Loans.
(ii) The
Seller has the power and authority to make, execute, deliver and perform this
Agreement and to consummate all of the transactions contemplated hereunder
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official records. When
executed and delivered, this Agreement will constitute the Seller’s legal, valid
and binding obligations enforceable in accordance with its terms, except as
enforcement of such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and the rights of creditors of
federally insured financial institutions and by the availability of equitable
remedies, (2) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from securities laws
liabilities.
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(iii) The
Seller holds all necessary licenses, certificates and permits from all
governmental authorities necessary for conducting its business as it is
currently conducted. It is not required to obtain the consent of any other
party
or any consent, license, approval or authorization from, or registration or
declaration with, any governmental authority, bureau or agency in connection
with the execution, delivery, performance, validity or enforceability of this
Agreement, except for such consents, licenses, approvals or authorizations,
or
registrations or declarations as shall have been obtained or filed, as the
case
may be, prior to the Closing Date.
(iv) The
execution, delivery and performance of this Agreement by the Seller will not
conflict with or result in a breach of, or constitute a default under, any
provision of any existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision of its
articles of incorporation, charter or by-laws, or constitute a material breach
of, or result in the creation or imposition of any lien, charge or encumbrance
upon any of its properties pursuant to any mortgage, indenture, contract or
other agreement to which it is a party or by which it may be bound.
(v) No
certificate of an officer, written statement or written report delivered
pursuant to the terms hereof of the Seller contains any untrue statement of
a
material fact or omits to state any material fact necessary to make the
certificate, statement or report not misleading.
(vi) The
transactions contemplated by this Agreement are in the ordinary course of the
Seller’s business.
(vii) The
Seller is not insolvent, nor will the Seller be made insolvent by the transfer
of the Mortgage Loans to the Depositor, nor is the Seller aware of any pending
insolvency of the Seller.
(viii) The
Seller is not in violation of, and the execution and delivery of this Agreement
by the Seller and its performance and compliance with the terms of this
Agreement will not constitute a violation with respect to, any order or decree
of any court, or any order or regulation of any federal, state, municipal or
governmental agency having jurisdiction, which violation would materially and
adversely affect the Seller’s financial condition (financial or otherwise) or
operations, or materially and adversely affect the performance of any of its
duties hereunder.
(ix) There
are
no actions or proceedings against the Seller, or pending or, to its knowledge,
threatened, before any court, administrative agency or other tribunal; nor,
to
the Seller’s knowledge, are there any investigations (i) that, if determined
adversely, would prohibit the Seller from entering into this Agreement, (ii)
seeking to prevent the consummation of any of the transactions contemplated
by
this Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to perform any of its
respective obligations under, or the validity or enforceability of, this
Agreement.
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(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor,
and
the Master Servicer of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trustee, as assignee of the Depositor, in, to and under
the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
The
Seller shall, within 30 days after the Closing Date, provide the Trustee, the
Servicer, the Certificate Insurer, the Securities Administrator and the
Depositor a complete list of each party to the HarborView Mortgage Loan Trust
2006-13 transaction.
ARTICLE
III
ADMINISTRATION
AND MASTER SERVICING OF
THE MORTGAGE LOANS;
CREDIT
RISK MANAGER
SECTION
3.01. Master
Servicer to Service and Administer the Mortgage Loans.
The
Master Servicer shall supervise, monitor and oversee the obligation of the
Servicers to service and administer their respective Mortgage Loans in
accordance with the terms of the applicable Servicing Agreement and shall have
full power and authority to do any and all things which it may deem necessary
or
desirable in connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act in a manner
consistent with Accepted Master Servicing Practices. Furthermore, the Master
Servicer shall oversee and consult with each Servicer as necessary from
time-to-time to carry out the Master Servicer’s obligations hereunder, shall
receive, review and evaluate all reports, information and other data provided
to
the Master Servicer by each Servicer and shall cause each Servicer to perform
and observe the covenants, obligations and conditions to be performed or
observed by such Servicer under the applicable Servicing Agreement.
Notwithstanding anything in this Agreement, the Servicing Agreements or the
Credit Risk Management Agreements to the contrary, the Master Servicer shall
have no duty or obligation to enforce the Credit Risk Management Agreements
or
to supervise, monitor or oversee the activities of the Servicers under the
related Credit Risk Management Agreements with respect to any action taken
or
not taken by the applicable Servicer at the direction of the Seller or pursuant
to a recommendation of the Credit Risk Manager. The Master Servicer shall
independently and separately monitor each Servicer’s servicing activities with
respect to each related Mortgage Loan, reconcile the results of such monitoring
with such information provided in the previous sentence on a monthly basis
and
coordinate corrective adjustments to the Servicers’ and Master Servicer’s
records, and provide such reconciled and corrected information to the Securities
Administrator to enable it to prepare the statements specified in Section 5.04
and any other information and statements required of the Securities
Administrator hereunder. The Master Servicer shall reconcile the results of
its
Mortgage Loan monitoring with the actual remittances of the Servicers to the
related Servicing Account pursuant to the applicable Servicing
Agreements.
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The
Trustee shall furnish the Servicers and the Master Servicer with any limited
powers of attorney and other documents in form acceptable to the Trustee,
necessary or appropriate to enable the Servicers and the Master Servicer to
service and administer the related Mortgage Loans and REO Property, which
limited powers of attorney shall provide that the Trustee will not be liable
for
the actions or omissions of the Servicers or Master Servicer in exercising
such
powers.
The
Master Servicer shall not without the Trustee’s written consent (i) initiate any
action, suit or proceeding solely under the Trustee’s name without indicating
the Master Servicer’s representative capacity or (ii) take any action with the
intent to cause, and which actually does cause, the Trustee to be registered
to
do business in any state. The Master Servicer shall indemnify the Trustee for
any and all costs, liabilities and expenses incurred by the Trustee in
connection with the negligent or willful misuse of such powers of attorney
by
the Master Servicer.
The
Trustee shall provide access to the records and documentation in possession
of
the Trustee (including in its capacity as Custodian hereunder) regarding the
related Mortgage Loans and REO Property and the servicing thereof to the
Certificateholders, the FDIC, and the supervisory agents and examiners of the
FDIC, such access being afforded only upon reasonable prior written request
and
during normal business hours at the office of the Trustee; provided,
however,
that,
unless otherwise required by law, the Trustee shall not be required to provide
access to such records and documentation if the provision thereof would violate
the legal right to privacy of any Mortgagor. The Trustee shall allow
representatives of the above entities to photocopy any of the records and
documentation and shall provide equipment for that purpose at a charge that
covers the Trustee’s actual costs.
The
Trustee, upon the written request of the related Servicer or the Master
Servicer, as applicable, shall execute and deliver to the related Servicer
and
the Master Servicer any court pleadings, requests for trustee’s sale or other
documents necessary or desirable to (i) the foreclosure or trustee’s sale with
respect to a Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain
a
deficiency judgment against the Mortgagor; or (iv) enforce any other rights
or
remedies provided by the Mortgage Note or Mortgage or otherwise available at
law
or equity.
57
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as each REMIC created hereunder shall exist, the Trustee and the Securities
Administrator shall act in accordance herewith to treat each of such REMIC
as a
REMIC, and the Trustee and the Securities Administrator shall comply with any
directions of the Depositor, the related Servicer or the Master Servicer to
assure such continuing treatment. In particular, the Trustee, the Securities
Administrator and the Master Servicer shall not (a) sell or knowingly permit
the
sale of all or any portion of the Mortgage Loans or of any investment of
deposits in an Account unless such sale is as a result of a repurchase of the
Mortgage Loans or is otherwise permitted pursuant to this Agreement or any
Servicing Agreement or the Trustee has received a REMIC Opinion prepared at
the
expense of the Trust Fund; and (b) other than with respect to a substitution
pursuant to the Mortgage Loan Purchase Agreement or Section 2.03 or 2.04 of
this
Agreement or as otherwise provided in this Agreement or any Servicing Agreement,
as applicable, accept any contribution to any REMIC after the Startup Day
without receipt of a REMIC Opinion.
SECTION
3.03. Monitoring
of Servicers.
(a) The
Master Servicer shall be responsible for reporting to the Trustee (on behalf
of
the Trust Fund) and the Depositor the compliance by each Servicer with its
duties under the related Servicing Agreement. In the review of each Servicer’s
activities, the Master Servicer may rely upon an officer’s certificate of the
Servicer with regard to such Servicer’s compliance with the terms of its
Servicing Agreement. In the event that the Master Servicer, in its judgment,
determines that a Servicer should be terminated in accordance with its Servicing
Agreement, or that a notice should be sent pursuant to such Servicing Agreement
with respect to the occurrence of an event that, unless cured, would constitute
grounds for such termination, the Master Servicer shall notify the Depositor
and
the Trustee thereof, and the Master Servicer shall issue such notice or take
such other action as it deems appropriate.
(b) The
Master Servicer, for the benefit of the Trust Fund and the Certificateholders,
shall (acting as agent of the Trust Fund when enforcing the Trust Fund’s rights
under each Servicing Agreement) (i) enforce the obligations of each Servicer
under the related Servicing Agreement, and (ii) in the event that a Servicer
fails to perform its obligations in accordance with the related Servicing
Agreement, subject to the preceding paragraph, terminate the rights and
obligations of such Servicer thereunder and act as servicer of the related
Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer
selected by the Master Servicer which the Master Servicer shall cause the
Trustee to acknowledge; provided,
however,
it is
understood and acknowledged by the parties hereto that there will be a period
of
transition (not to exceed 90 days) before the actual servicing functions can
be
fully transferred to such successor Servicer. Such enforcement, including,
without limitation, the legal prosecution of claims, termination of Servicing
Agreements and the pursuit of other appropriate remedies, shall be in such
form
and carried out to such an extent and at such time as the Master Servicer,
in
its good faith business judgment, would require were it the owner of the related
Mortgage Loans. The Master Servicer shall pay the costs of such enforcement
at
its own expense except as provided in paragraph (c) below, provided that the
Master Servicer shall not be required to prosecute or defend any legal action
except to the extent that the Master Servicer shall have received reasonable
indemnity for its costs and expenses in pursuing such action from the Trust
Fund.
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(c) To
the
extent that the costs and expenses of the Master Servicer related to any
termination of a Servicer, appointment of a successor Servicer or the transfer
and assumption of servicing by the Master Servicer or a successor Servicer
with
respect to any Servicing Agreement (including, without limitation, (i) all
reasonable legal costs and expenses and all due diligence costs and expenses
associated with an evaluation of the potential termination of the Servicer
as a
result of an event of default by such Servicer and (ii) all reasonable costs
and
expenses associated with the complete transfer of servicing, including all
servicing files and all servicing data and the completion, correction or
manipulation of such servicing data as may be required by the successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the successor servicer to service the Mortgage Loans in accordance with
the related Servicing Agreement) are not fully and timely reimbursed by the
terminated Servicer, the Master Servicer shall be entitled to reimbursement
of
such reasonable costs and expenses from the Distribution Account.
(d) The
Master Servicer shall require each Servicer to comply with the remittance
requirements and other obligations set forth in the related Servicing
Agreement.
(e) If
the
Master Servicer acts as Servicer, it will not assume liability for the
representations and warranties of the predecessor Servicer, if any, that it
replaces or for any errors, acts or omissions of such predecessor Servicer
occurring prior to the termination of such Servicer; provided,
however,
the
Master Servicer shall not be relieved of its liability, if any, as Master
Servicer under this Section 3.03(e).
SECTION
3.04. Fidelity
Bond.
(a) The
Master Servicer, at its expense, shall maintain in effect a blanket fidelity
bond and an errors and omissions insurance policy, affording coverage with
respect to all directors, officers, employees and other Persons acting on such
Master Servicer’s behalf, and covering errors and omissions in the performance
of the Master Servicer’s obligations hereunder. The errors and omissions
insurance policy and the fidelity bond shall be in such form and amount
generally acceptable for entities serving as master servicers or trustees.
The
Master Servicer shall provide the Trustee a copy of such policy and fidelity
bond upon request.
(b) The
Master Servicer shall promptly report to the Trustee any material changes that
may occur in the Master Servicer fidelity bond or the Master Servicer errors
and
omissions insurance policy and shall furnish to the Trustee, on request,
certificates evidencing that such bond and insurance policy are in full force
and effect. The Master Servicer shall promptly report to the Trustee all cases
of embezzlement or fraud, if such events involve funds relating to the Mortgage
Loans. The total losses relating to the Mortgage Loans, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed
in
such reports together with the amount of such losses covered by insurance.
If a
bond or insurance claim report relating to the Mortgage Loans is filed with
any
of such bonding companies or insurers, the Master Servicer shall promptly
furnish a copy of such report to the Trustee. Any amounts relating to the
Mortgage Loans collected by the Master Servicer under any such bond or policy
shall be promptly remitted by the Master Servicer to the Securities
Administrator for deposit into the Distribution Account. Any amounts relating
to
the Mortgage Loans collected by the applicable Servicer under any such bond
or
policy shall be remitted to the Master Servicer to the extent provided in the
applicable Servicing Agreement.
59
SECTION
3.05. Power
to Act; Procedures.
The
Master Servicer shall master service the Mortgage Loans and shall have full
power and authority, subject to the REMIC Provisions and the provisions of
Article X hereof, to do any and all things that it may deem necessary or
desirable in connection with the master servicing and administration of the
Mortgage Loans, including but not limited to the power and authority (i) to
execute and deliver, on behalf of the Certificateholders, the Trust Fund and
the
Trustee, customary consents or waivers and other instruments and documents,
(ii)
to consent to transfers of any Mortgaged Property and assumptions of the
Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds,
Liquidation Proceeds and Recoveries, and (iv) to effectuate, either in its
own
name on behalf of the Trust Fund, or in the name of the Trust Fund, foreclosure
or other conversion of the ownership of the Mortgaged Property securing any
Mortgage Loan, in each case, in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable; provided,
however,
that
the Master Servicer shall not (and, consistent with its responsibilities under
Section 3.03, shall not permit any Servicer to) knowingly or intentionally
take
any action, or fail to take (or fail to cause to be taken) any action reasonably
within its control and the scope of duties more specifically set forth herein,
that, under the REMIC Provisions, if taken or not taken, as the case may be,
would result in an Adverse REMIC Event unless the Master Servicer has received
an Opinion of Counsel (but not at the expense of the Master Servicer) to the
effect that the contemplated action will not result in an Adverse REMIC Event.
The Trustee shall furnish the Master Servicer, upon written request from a
Servicing Officer, with any limited powers of attorney empowering the Master
Servicer or any Servicer to execute and deliver instruments of satisfaction
or
cancellation, or of partial or full release or discharge, and to foreclose
upon
or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend
in
any court action relating to the Mortgage Loans or the Mortgaged Property,
in
accordance with the applicable Servicing Agreement and this Agreement, and
the
Trustee shall execute and deliver such other documents, as the Master Servicer
may request, to enable the Master Servicer to master service and administer
the
Mortgage Loans and carry out its duties hereunder, in each case in accordance
with Accepted Master Servicing Practices (and the Trustee shall have no
liability for misuse of any such powers of attorney by the Master Servicer
or
any Servicer). In instituting foreclosures or similar proceedings, the Master
Servicer shall institute such proceedings either in its own name on behalf
of
the Trust Fund, or in the name of the Trust Fund (or cause the related Servicer,
pursuant to the related Servicing Agreement, to institute such proceedings
either in the name of such Servicer on behalf of the Trust, or in the name
of
the Trust Fund), unless otherwise required by law or otherwise appropriate.
If
the Master Servicer or the Trustee has been advised that it is likely that
the
laws of the state in which action is to be taken prohibit such action if taken
in the name of the Trust Fund or the Trustee on its behalf or that the Trust
Fund or the Trustee, as applicable, would be adversely affected under the “doing
business” or tax laws of such state if such action is taken in its name, the
Master Servicer shall join with the Trustee, on behalf of the Trust Fund, in
the
appointment of a co-trustee pursuant to Section 8.10 hereof. In the performance
of its duties hereunder, the Master Servicer shall be an independent contractor
and shall not, except in those instances where it is taking action in the name
of the Trustee, be deemed to be the agent of the Trustee on behalf of the Trust
Fund.
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SECTION
3.06. Due-on-Sale
Clauses; Assumption Agreements.
To
the
extent provided in the applicable Servicing Agreement and to the extent Mortgage
Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause
the Servicers to enforce such clauses in accordance with the applicable
Servicing Agreement. If applicable law prohibits the enforcement of a
due-on-sale clause or such clause is otherwise not enforced in accordance with
the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan
is
assumed, the original Mortgagor may be released from liability in accordance
with the applicable Servicing Agreement.
SECTION
3.07. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
any Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the applicable Servicing
Agreement, promptly furnish to the Custodian, on behalf of the Trustee, two
copies of a certification substantially in the form of Exhibit F hereto signed
by a Servicing Officer or in a mutually agreeable electronic format which will,
in lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the related
Servicing Account maintained by the applicable Servicer pursuant to Section
4.01
or by the applicable Servicer pursuant to its Servicing Agreement have been
or
will be so deposited) and shall request that the Trustee (or the Custodian,
on
behalf of the Trustee) deliver to the applicable Servicer the related Mortgage
File. Upon receipt of such certification and request, the Trustee (or the
Custodian, on behalf of the Trustee), shall promptly release the related
Mortgage File to the applicable Servicer and the Trustee (and the Custodian,
if
applicable) shall have no further responsibility with regard to such Mortgage
File. Upon any such payment in full, each Servicer is authorized, to give,
as
agent for the Trustee, as the mortgagee under the Mortgage that secured the
Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without
recourse) regarding the Mortgaged Property subject to the Mortgage, which
instrument of satisfaction or assignment, as the case may be, shall be delivered
to the Person or Persons entitled thereto against receipt therefor of such
payment, it being understood and agreed that no expenses incurred in connection
with such instrument of satisfaction or assignment, as the case may be, shall
be
chargeable to the related Servicing Account.
61
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the applicable Servicing Agreement, the Trustee shall
execute such documents as shall be prepared and furnished to the Trustee by
a
Servicer or the Master Servicer (in form reasonably acceptable to the Trustee)
and as are necessary to the prosecution of any such proceedings. The Trustee
(or
the Custodian, on behalf of the Trustee), shall, upon the request of a Servicer
or the Master Servicer, and upon delivery to the Trustee (or the Custodian,
on
behalf of the Trustee) of two copies of a request for release signed by a
Servicing Officer substantially in the form of Exhibit F (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in
its possession or control to the Servicer or the Master Servicer, as applicable.
Such trust receipt shall obligate the Servicer or the Master Servicer to return
the Mortgage File to the Trustee (or the Custodian on behalf of the Trustee)
when the need therefor by the Servicer or the Master Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of
a
certificate of a Servicing Officer similar to that hereinabove specified, the
Mortgage File shall be released by the Trustee (or the Custodian, on behalf
of
the Trustee), to the Servicer or the Master Servicer.
SECTION
3.08. Documents,
Records and Funds in Possession of Master Servicer to be Held for Trust
Fund.
(a) The
Master Servicer shall transmit and each Servicer (to the extent required by
the
related Servicing Agreement) shall transmit to the Trustee (or Custodian) such
documents and instruments coming into the possession of the Master Servicer
or
such Servicer from time to time as are required by the terms hereof or, in
the
case of the Servicers, by the applicable Servicing Agreement, to be delivered
to
the Trustee (or Custodian). Any funds received by the Master Servicer or by
a
Servicer in respect of any Mortgage Loan or which otherwise are collected by
the
Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds
or
Recoveries in respect of any Mortgage Loan shall be held for the benefit of
the
Trust Fund and the Certificateholders, subject to the Master Servicer’s right to
retain or withdraw from the Distribution Account the Master Servicing Fee,
any
additional compensation pursuant to Section 3.14 and any other amounts provided
in this Agreement, and to the right of each Servicer to retain its Servicing
Fee
and any other amounts as provided in the applicable Servicing Agreement. The
Master Servicer shall, and (to the extent provided in the applicable Servicing
Agreement) shall cause each Servicer to, provide access to information and
documentation regarding the Mortgage Loans to the Trustee, their respective
agents and accountants at any time upon reasonable request and during normal
business hours, and to Certificateholders that are savings and loan
associations, banks or insurance companies, the Office of Thrift Supervision,
the FDIC and the supervisory agents and examiners of such Office and Corporation
or examiners of any other federal or state banking or insurance regulatory
authority if so required by applicable regulations of the Office of Thrift
Supervision or other regulatory authority, such access to be afforded without
charge but only upon reasonable request in writing and during normal business
hours at the offices of the Master Servicer designated by it. In fulfilling
such
a request the Master Servicer shall not be responsible for determining the
sufficiency of such information.
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(b) All
Mortgage Files and funds collected or held by, or under the control of, the
Master Servicer, in respect of any Mortgage Loans, whether from the collection
of principal and interest payments or from Liquidation Proceeds, Insurance
Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf
of the Trust Fund and the Certificateholders and shall be and remain the sole
and exclusive property of the Trust Fund; provided,
however,
that
the Master Servicer and each Servicer shall be entitled to setoff against,
and
deduct from, any such funds any amounts that are properly due and payable to
the
Master Servicer or such Servicer under this Agreement or the applicable
Servicing Agreement.
SECTION
3.09. Standard
Hazard Insurance and Flood Insurance Policies
(a) For
each
Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall enforce
any obligation of the Servicers under the related Servicing Agreements to
maintain or cause to be maintained standard fire and casualty insurance and,
where applicable, flood insurance, all in accordance with the provisions of
the
related Servicing Agreements. It is understood and agreed that such insurance
shall be with insurers meeting the eligibility requirements set forth in the
applicable Servicing Agreement and that no earthquake or other additional
insurance is to be required of any Mortgagor or to be maintained on property
acquired in respect of a defaulted loan, other than pursuant to such applicable
laws and regulations as shall at any time be in force and as shall require
such
additional insurance.
(b) Pursuant
to Sections 4.01 and 4.02, any amounts collected by any Servicer or the Master
Servicer under any insurance policies (other than amounts to be applied to
the
restoration or repair of the property subject to the related Mortgage or
released to the Mortgagor in accordance with the applicable Servicing Agreement)
shall be deposited into the Distribution Account, subject to withdrawal pursuant
to Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or any
Servicer in maintaining any such insurance if the Mortgagor defaults in its
obligation to do so shall be added to the amount owing under the Mortgage Loan
where the terms of the Mortgage Loan so permit; provided,
however,
that
the addition of any such cost shall not be taken into account for purposes
of
calculating the distributions to be made to Certificateholders and shall be
recoverable by the Master Servicer or such Servicer pursuant to Sections 4.02
and 4.03.
SECTION
3.10. Presentment
of Claims and Collection of Proceeds.
The
Master Servicer shall (to the extent provided in the applicable Servicing
Agreement) cause the related Servicer to prepare and present on behalf of the
Trustee, the Trust Fund and the Certificateholders all claims under the
Insurance Policies and take such actions (including the negotiation, settlement,
compromise or enforcement of the insured’s claim) as shall be necessary to
realize recovery under such policies. Any proceeds disbursed to the Master
Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in
respect of such policies, bonds or contracts shall be promptly deposited in
the
Distribution Account upon receipt, except that any amounts realized that are
to
be applied to the repair or restoration of the related Mortgaged Property as
a
condition precedent to the presentation of claims on the related Mortgage Loan
to the insurer under any applicable Insurance Policy need not be so deposited
(or remitted).
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SECTION
3.11. Maintenance
of the Primary Insurance Policies.
(a) The
Master Servicer shall not take, or permit any Servicer (to the extent such
action is prohibited under the applicable Servicing Agreement) to take, any
action that would result in noncoverage under any applicable Primary Insurance
Policy of any loss which, but for the actions of such Master Servicer or
Servicer, would have been covered thereunder. The Master Servicer shall use
its
best reasonable efforts to cause each Servicer (to the extent required under
the
related Servicing Agreement) to keep in force and effect (to the extent that
the
Mortgage Loan requires the Mortgagor to maintain such insurance), primary
mortgage insurance applicable to each Mortgage Loan (including any lender-paid
Primary Insurance Policy) in accordance with the provisions of this Agreement
and the related Servicing Agreement, as applicable. The Master Servicer shall
not, and shall not permit any Servicer (to the extent required under the related
Servicing Agreement) to, cancel or refuse to renew any such Primary Insurance
Policy that is in effect at the date of the initial issuance of the Mortgage
Note and is required to be kept in force hereunder except in accordance with
the
provisions of this Agreement and the related Servicing Agreement, as
applicable.
(b) The
Master Servicer agrees to cause each Servicer (to the extent required under
the
related Servicing Agreement) to present, on behalf of the Trustee, the Trust
and
the Certificateholders, claims to the insurer under any Primary Insurance
Policies and, in this regard, to take such reasonable action as shall be
necessary to permit recovery under any Primary Insurance Policies respecting
defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts collected by
the
Servicer under any Primary Insurance Policies shall be remitted to the
Securities Administrator for deposit in the Distribution Account, subject to
withdrawal pursuant to Section 4.03.
SECTION
3.12. Trustee
to Retain Possession of Certain Insurance Policies and Documents.
The
Trustee (or the Custodian, as directed by the Trustee), shall retain possession
and custody of the originals (to the extent available and delivered) of any
Primary Insurance Policies or certificate of insurance if applicable and
available, and any certificates of renewal as to the foregoing as may be issued
from time to time as contemplated by this Agreement and which come into its
possession. Until all amounts distributable in respect of the Certificates
have
been distributed in full and the Master Servicer otherwise has fulfilled its
obligations under this Agreement, the Trustee (or the Custodian, as directed
by
the Trustee) shall also retain possession and custody of each Mortgage File
in
accordance with and subject to the terms and conditions of this Agreement.
The
Master Servicer shall promptly deliver or cause to be delivered to the Trustee
(or the Custodian, as directed by the Trustee), upon the execution or receipt
thereof the originals of any Primary Insurance Policies, any certificates of
renewal, and such other documents or instruments that constitute portions of
the
Mortgage File that come into the possession of the Master Servicer from time
to
time.
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SECTION
3.13. Realization
Upon Defaulted Mortgage Loans.
The
Master Servicer shall cause each Servicer (to the extent required under the
related Servicing Agreement) to foreclose upon, repossess or otherwise
comparably convert the ownership of Mortgaged Properties securing such of the
Mortgage Loans as come into and continue in default and as to which no
satisfactory arrangements can be made for collection of delinquent payments,
all
in accordance with the applicable Servicing Agreement.
SECTION
3.14. Additional
Compensation to the Master Servicer.
The
Master Servicer shall be entitled to receive the Master Servicing Fee and,
pursuant to Section 4.02(c), certain income and gain realized from any
investment of funds in the Distribution Account shall be for the benefit of
the
Master Servicer as additional compensation. Servicing compensation in the form
of assumption fees, if any, late payment charges, as collected, if any, or
otherwise (but, unless otherwise specifically permitted in the applicable
Servicing Agreement, not including any Prepayment Penalty Amounts) shall be
retained by the applicable Servicer, or the Master Servicer, and shall not
be
deposited in the related Servicing Account or the Distribution
Account. The
Master Servicer shall be required to pay all expenses incurred by it in
connection with its activities hereunder and shall not be entitled to
reimbursement therefor except as provided in this Agreement. The amount of
the
aggregate compensation payable as set forth in this Section 3.14 plus the Master
Servicing Fee due to the Master Servicer in respect of any Distribution Date
shall be reduced in accordance with Section 5.06.
SECTION
3.15. REO
Property.
(a) In
the
event the Trust Fund (or the Trustee, on behalf of the Trust), acquires
ownership of any REO Property in respect of any related Mortgage Loan, the
deed
or certificate of sale shall be issued to the Trust Fund, or if required under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust Fund.
The Master Servicer shall, to the extent provided in the applicable Servicing
Agreement, cause the applicable Servicer to sell any REO Property as
expeditiously as possible (and in no event later than three years after
acquisition) and in accordance with the provisions of this Agreement and the
related Servicing Agreement, as applicable. Pursuant to its efforts to sell
such
REO Property, the Master Servicer shall cause the applicable Servicer to protect
and conserve such REO Property in the manner and to the extent required by
the
applicable Servicing Agreement, in accordance with the REMIC Provisions and
in a
manner that does not result in a tax on “net income from foreclosure property”
or cause such REO Property to fail to qualify as “foreclosure property” within
the meaning of Section 860G(a)(8) of the Code.
(b) The
Master Servicer shall, to the extent required by the related Servicing
Agreement, cause the applicable Servicer to deposit all funds collected and
received in connection with the operation of any REO Property in the related
Servicing Account.
(c) The
Master Servicer and the applicable Servicer, upon the final disposition of
any
REO Property, shall be entitled to reimbursement for any related unreimbursed
Advances and other unreimbursed advances as well as any unpaid Servicing Fees
from Liquidation Proceeds received in connection with the final disposition
of
such REO Property; provided, that any such unreimbursed Advances as well as
any
unpaid Servicing Fees may be reimbursed or paid, as the case may be, prior
to
final disposition, out of any net rental income or other net amounts derived
from such REO Property.
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(d) To
the
extent provided in the related Servicing Agreement, the Liquidation Proceeds
from the final disposition of the REO Property, net of any payment to the Master
Servicer and the applicable Servicer as provided above shall be deposited in
the
related Servicing Account on or prior to the applicable Determination Date
in
the month following receipt thereof and be remitted by wire transfer in
immediately available funds to the Master Servicer for deposit into the
Distribution Account on the next succeeding applicable Servicer Remittance
Date.
SECTION
3.16. Assessments
of Compliance and Attestation Reports.
(a) Assessments
of Compliance.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer, the Securities Administrator and the Trustee, in its
capacity as Custodian, each at its own expense, shall furnish, and each such
party shall cause any Servicing Function Participant engaged by it to furnish
or
otherwise make available, each at its own expense, to the Securities
Administrator and the Depositor (provided that the Master Servicer shall furnish
copies of each such report received by it from the Servicers to the Depositor),
a report on an assessment of compliance with the Relevant Servicing Criteria
that contains (A) a statement by such party of its responsibility for assessing
compliance with the Relevant Servicing Criteria, (B) a statement that such
party
used the Servicing Criteria to assess compliance with the Relevant Servicing
Criteria, (C) such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for the fiscal year covered by the Form 10-K required to
be
filed pursuant to Section 3.19(b) and for each fiscal year thereafter, whether
or not a Form 10-K is required to be filed, including, if there has been any
material instance of noncompliance with the Relevant Servicing Criteria, a
discussion of each such failure and the nature and status thereof, and (D)
a
statement that a registered public accounting firm has issued an attestation
report on such party’s assessment of compliance with the Relevant Servicing
Criteria as of and for such period.
(ii) No
later
than the end of each fiscal year for the Trust Fund for which a 10-K is required
to be filed, the Master Servicer and the Trustee, in its capacity as Custodian,
shall each forward to the Securities Administrator and the Depositor the name
of
each Servicing Function Participant engaged by it and what Relevant Servicing
Criteria will be addressed in the report on assessment of compliance prepared
by
such Servicing Function Participant (provided, however, that the Master Servicer
need not provide such information to the Securities Administrator so long as
the
Master Servicer and Securities Administrator are the same Person). When the
Master Servicer, the Trustee, in its capacity as Custodian, and the Securities
Administrator (or any Servicing Function Participant engaged by them) submit
their assessments to the Securities Administrator, such parties will also at
such time include the assessment (and attestation pursuant to subsection (b)
of
this Section 3.16) of each Servicing Function Participant engaged by
it.
66
(iii) Promptly
after receipt of each such report on assessment of compliance, (i) the Depositor
shall review each such report and, if applicable, consult with the Master
Servicer, the Securities Administrator, the Trustee, in its capacity as
Custodian, and any Servicing Function Participant engaged by such parties as
to
the nature of any material instance of noncompliance with the Relevant Servicing
Criteria by each such party, and (ii) the Securities Administrator shall confirm
that the assessments, taken as a whole, address all of the Servicing Criteria
and taken individually address the Relevant Servicing Criteria for each party
as
set forth on Exhibit Q and on any similar exhibit set forth in each Servicing
Agreement in respect of the related Servicer and notify the Depositor of any
exceptions.
(iv) The
Master Servicer shall include all annual reports on assessment of compliance
received by it from each Servicer (or the Subservicer on its behalf) with its
own assessment of compliance to be submitted to the Securities Administrator
pursuant to this Section.
(v) In
the
event the Master Servicer, the Securities Administrator, the Trustee in its
capacity as Custodian (to the extent it is also acting as custodian) or any
Servicing Function Participant engaged by such party is terminated, assigns
its
rights and obligations under or resigns pursuant to the terms of this Agreement,
or any other applicable agreement, as the case may be, such party shall provide
a report on assessment of compliance pursuant to this Section 3.16(a) or to
such
other applicable agreement, notwithstanding any such termination, assignment
or
resignation.
(b) Attestation
Reports.
(i) By
March
10 (with a 5 calendar day cure period) of each year, commencing in March 2007,
the Master Servicer, the Securities Administrator, the Trustee, in its capacity
as Custodian, each at its own expense, shall cause, and each such party shall
cause any Servicing Function Participant engaged by it to cause, each at its
own
expense, a registered public accounting firm (which may also render other
services to the Master Servicer, the Credit Risk Manager, the Trustee, in its
capacity as Custodian, the Securities Administrator, or such other Servicing
Function Participants, as the case may be) and that is a member of the American
Institute of Certified Public Accountants to furnish a report to the Securities
Administrator and the Depositor, to the effect that (i) it has obtained a
representation regarding certain matters from the management of such party,
which includes an assertion that such party has complied with the Relevant
Servicing Criteria, and (ii) on the basis of an examination conducted by such
firm in accordance with standards for attestation engagements issued or adopted
by the PCAOB, it is expressing an opinion as to whether such party’s compliance
with the Relevant Servicing Criteria was fairly stated in all material respects,
or it cannot express an overall opinion regarding such party’s assessment of
compliance with the Relevant Servicing Criteria. In the event that an overall
opinion cannot be expressed, such registered public accounting firm shall state
in such report why it was unable to express such an opinion. Such report must
be
available for general use and not contain restricted use language.
67
(ii) Promptly
after receipt of each such assessment of compliance and attestation report
the
Securities Administrator shall confirm that each assessment submitted pursuant
to subsection (a) of this Section 3.16 is coupled with an attestation meeting
the requirements of this Section and notify the Depositor of any
exceptions.
(iii) The
Master Servicer shall include each such attestation furnished to it by the
Servicers with its own attestation to be submitted to the Securities
Administrator pursuant to this Section.
(iv) In
the
event the Master Servicer, the Securities Administrator, the Trustee in its
capacity as Custodian (to the extent it is also acting as custodian) or any
servicer or any Servicing Function Participant engaged by such party is
terminated, assigns its rights and duties under or resigns pursuant to the
terms
of this Agreement, or any applicable custodial agreement, servicing agreement
or
subservicing agreement, as the case may be, such party shall cause a registered
public accounting firm to provide an attestation pursuant to this Section 3.16
notwithstanding any such termination, assignment or resignation.
(v) The
Trustee’s obligation in its capacity as Custodian to provide assessments of
compliance and attestations under this Section 3.16 shall terminate upon the
filing of a Form 15 suspension notice on behalf of the Trust Fund.
Notwithstanding the foregoing, after the occurrence of such event, and provided
that the Depositor is not otherwise provided with such reports or copies of
such
reports, the Master Servicer and the Securities Administrator shall be obligated
to provide a copy of such reports, by March 31 of each year, to the
Depositor.
SECTION
3.17. Annual
Compliance Statement.
The
Master Servicer and the Securities Administrator shall deliver (and the Master
Servicer and Securities Administrator shall cause any or Servicing Function
Participant engaged by it to deliver) to the Depositor and the Securities
Administrator on or before March 10 (with a 5 calendar day cure period) of
each
year, commencing in March 2007, an Officer’s Certificate stating, as to the
signer thereof, that (A) a review of such party’s activities during the
preceding calendar year or portion thereof and of such party’s performance under
this Agreement, or such other applicable agreement in the case of a Servicing
Function Participant, has been made under such officer’s supervision and (B) to
the best of such officer’s knowledge, based on such review, such party has
fulfilled all its obligations under this Agreement, or such other applicable
agreement in the case of a Servicing Function Participant, in all material
respects throughout such year or portion thereof, or, if there has been a
failure to fulfill any such obligation in any material respect, specifying
each
such failure known to such officer and the nature and status
thereof.
68
The
Master Servicer shall include all annual statements of compliance received
by it
from the Servicers with its own annual statement of compliance to be submitted
to the Securities Administrator pursuant to this Section.
In
the
event the Master Servicer, the Securities Administrator or any Servicing
Function Participant engaged by parties is terminated or resigns pursuant to
the
terms of this Agreement, or any applicable agreement in the case of a Servicing
Function Participant, as the case may be, such party shall provide an Officer’s
Certificate pursuant to this Section 3.17 with respect to the period of time
it
was subject to this Agreement or any other applicable agreement, as the case
may
be.
SECTION
3.18. Xxxxxxxx-Xxxxx
Certification.
Each
Form
10-K shall include a Xxxxxxxx-Xxxxx Certification, required to be included
therewith pursuant to the Xxxxxxxx-Xxxxx Act. The Securities Administrator
and
the Master Servicer shall provide, and each such party shall cause any Servicing
Function Participant engaged by it to provide, to the Person who signs the
Xxxxxxxx-Xxxxx Certification (the “Certifying
Person”),
by
March 10 (with a 5 calendar day cure period) of each year in which the Trust
Fund is subject to the reporting requirements of the Exchange Act and otherwise
within a reasonable period of time upon request, a certification (each, a
“Back-Up
Certification”)
upon
which the Certifying Person, the entity for which the Certifying Person acts
as
an officer, and such entity’s officers, directors and Affiliates (collectively
with the Certifying Person, “Certification
Parties”)
can
reasonably rely. A senior officer of the Master Servicer in charge of the master
servicing function shall serve as the Certifying Person on behalf of the Trust.
Such officer of the Certifying Person can be contacted by e-mail at
xxx.xxx.xxxxxxxxxxxxx@xxxxxxxxxx.xxx or by facsimile at 000-000-0000. In the
event any such party or any Servicing Function Participant engaged by such
party
is terminated or resigns pursuant to the terms of this Agreement, or any
applicable subservicing agreement, as the case may be, such party shall provide
a Back-Up Certification to the Certifying Person pursuant to this Section 3.18
with respect to the period of time it was subject to this Agreement or any
applicable subservicing agreement, as the case may be. Notwithstanding the
foregoing, (i) the Master Servicer and the Securities Administrator shall not
be
required to deliver a Back-Up Certification to each other if both are the same
Person and the Master Servicer is the Certifying Person and (ii) the Master
Servicer shall not be obligated to sign the Xxxxxxxx-Xxxxx Certification in
the
event that it does not receive any Back-Up Certification required to be
furnished to it pursuant to this section or any Servicing
Agreement.
SECTION
3.19. Reports
Filed with Securities and Exchange Commission.
(a) Reports
Filed on Form 10-D.
(i) Within
15
days after each Distribution Date (subject to permitted extensions under the
Exchange Act), the Securities Administrator shall prepare and file on behalf
of
the Trust Fund any Form 10-D required by the Exchange Act, in form and substance
as required by the Exchange Act. The Securities Administrator shall file each
Form 10-D with a copy of the related Distribution Date Statement attached
thereto. Any disclosure in addition to the Distribution Date Statement that
is
required to be included on Form 10-D (“Additional Form 10-D Disclosure”) shall
be reported by the parties set forth on Exhibit O to the Securities
Administrator and Depositor and directed and approved by the Depositor pursuant
to the following paragraph and the Securities Administrator will have no duty
or
liability for any failure hereunder to determine or prepare any Additional
Form
10-D Disclosure, except as set forth in the next paragraph.
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(ii) As
set
forth on Exhibit R hereto, within 5 calendar days after the related Distribution
Date, (i) the parties to the HarborView Mortgage Loan Trust 2006-13 transaction
shall be required to provide to the Securities Administrator, the Depositor
and
XxXxx Xxxxxx LLP, to the extent known by a responsible officer thereof, in
XXXXX-compatible form (which may be Word or Excel documents easily convertible
to XXXXX format), or in such other form as otherwise agreed upon by the
Securities Administrator and such party, the form and substance of any
Additional Form 10-D Disclosure, if applicable, together with an Additional
Disclosure Notification in the form of Exhibit U hereto (an “Additional
Disclosure Notification”) and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-D Disclosure on Form 10-D. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-D Disclosure
in Form 10-D pursuant to this paragraph.
(iii) After
preparing the Form 10-D, the Securities Administrator shall, no later than
10
calendar days after the related Distribution Date, forward electronically a
copy
of the Form 10-D to the Depositor and XxXxx Xxxxxx LLP (provided that such
Form
10-D includes any Additional Form 10-D Disclosure). Within two Business Days
after receipt of such copy, but no later than the 12th
calendar
day after the Distribution Date (or the next succeeding Business Day), the
Depositor shall notify the Securities Administrator in writing of any changes
to
or approval of such Form 10-D. In the absence of receipt of any written changes
or approval, the Securities Administrator shall be entitled to assume that
such
Form 10-D is in final form and the Securities Administrator may proceed with
the
execution and filing of Form 10-D. A duly authorized representative of the
Master Servicer shall sign each Form 10-D. If a Form 10-D cannot be filed on
time or if a previously filed Form 10-D needs to be amended, the Securities
Administrator will follow the procedures set forth in subsection (d)(ii) of
this
Section 3.19. Promptly (but no later than 1 Business Day) after filing with
the
Commission, the Securities Administrator will make available on its internet
website a final executed copy of each Form 10-D filed by the Securities
Administrator. Each party to this Agreement acknowledges that the performance
by
the Master Servicer and the Securities Administrator of their respective duties
under this Section 3.19(a) related to the timely preparation, execution and
filing of Form 10-D is contingent upon such parties strictly observing all
applicable deadlines in the performance of their duties under this Section
3.19(a). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-D, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-D, not
resulting from its own negligence, bad faith or willful misconduct.
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(iv) Form
10-D
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-D with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing, no later than
the fifth calendar day after the related Distribution Date with respect to
the
filing of a report on Form 10-D if the answer to the questions should be “no.”
The Securities Administrator shall be entitled to rely on such representations
in preparing, executing and/or filing any such report.
(b) Reports
Filed on Form 10-K.
(i) On
or
prior to the 90th day after the end of each fiscal year of the Trust Fund in
which a Form 10-K is required to be filed or such earlier date as may be
required by the Exchange Act (the “10-K Filing Deadline”) (it being understood
that the fiscal year for the Trust Fund ends on December 31st of each year),
commencing in March 2007, the Securities Administrator shall prepare and file
on
behalf of the Trust Fund a Form 10-K, in form and substance as required by
the
Exchange Act. Each such Form 10-K shall include the following items, in each
case to the extent they have been delivered to the Securities Administrator
within the applicable time frames set forth in this Agreement and the related
Servicing Agreement, (i) an annual compliance statement for each Servicer,
the
Master Servicer and the Securities Administrator and any Servicing Function
Participant engaged by such parties (a “Reporting Servicer”) as described under
Section 3.17 and in such other agreement, (ii)(A) the annual reports on
assessment of compliance with servicing criteria for each Reporting Servicer,
as
described under Section 3.16(a), and (B) if any Reporting Servicer’s report on
assessment of compliance with servicing criteria described under Section 3.16(a)
identifies any material instance of noncompliance, disclosure identifying such
instance of noncompliance, or if any Reporting Servicer’s report on assessment
of compliance with servicing criteria described under Section 3.16(a) is not
included as an exhibit to such Form 10-K, disclosure that such report is not
included and an explanation why such report is not included, (iii)(A) the
registered public accounting firm attestation report for each Reporting
Servicer, as described under Section 3.16(b), and (B) if any registered public
accounting firm attestation report described under Section 3.16(b) identifies
any material instance of noncompliance, disclosure identifying such instance
of
noncompliance, or if any such registered public accounting firm attestation
report is not included as an exhibit to such Form 10-K, disclosure that such
report is not included and an explanation why such report is not included,
and
(iv) a Xxxxxxxx-Xxxxx Certification as described in Section 3.18 (provided,
however, that the Securities Administrator, at its discretion, may omit from
the
Form 10-K any annual compliance statement, assessment of compliance or
attestation report that is not required to be filed with such Form 10-K pursuant
to Regulation AB). Any disclosure or information in addition to (i) through
(iv)
above that is required to be included on Form 10-K (“Additional Form 10-K
Disclosure”) shall be reported by the parties set forth on Exhibit O to the
Depositor and Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Additional Form 10-K Disclosure, except as set forth in the next
paragraph.
71
(ii) As
set
forth on Exhibit S hereto, no later than March 10 (with a 5 calendar day cure
period) of each year that the Trust Fund is subject to the Exchange Act
reporting requirements, commencing in 2007, (i) the parties to the HarborView
Mortgage Loan Trust 2006-13 transaction shall be required to provide to the
Securities Administrator and the Depositor, to the extent known by a responsible
officer thereof, in XXXXX-compatible form (which may be Word or Excel documents
easily convertible to XXXXX format), or in such other form as otherwise agreed
upon by the Securities Administrator and such party, the form and substance
of
any Additional Form 10-K Disclosure, if applicable, together with an Additional
Disclosure Notification and (ii) the Depositor will approve, as to form and
substance, or disapprove, as the case may be, the inclusion of the Additional
Form 10-K Disclosure on Form 10-K. The Seller will be responsible for any
reasonable fees and expenses assessed or incurred by the Securities
Administrator in connection with including any Additional Form 10-K Disclosure
in Form 10-K pursuant to this paragraph.
(iii) After
preparing the Form 10-K, the Securities Administrator shall forward
electronically a copy of the Form 10-K to the Depositor and XxXxx Xxxxxx LLP.
Within three Business Days after receipt of such copy, but no later than March
25th, the Depositor shall notify the Securities Administrator in writing of
any
changes to or approval of such Form 10-K. In the absence of receipt of any
written changes or approval, the Securities Administrator shall be entitled
to
assume that such Form 10-K is in final form and the Securities Administrator
may
proceed with the execution and filing of the Form 10-K. A senior officer of
the
Master Servicer in charge of the master servicing function shall sign each
Form
10-K. If a Form 10-K cannot be filed on time or if a previously filed Form
10-K
needs to be amended, the Securities Administrator will follow the procedures
set
forth in subsection (d)(ii) of this Section 3.19. Promptly (but no later than
1
Business Day) after filing with the Commission, the Securities Administrator
will make available on its internet website a final executed copy of each Form
10-K filed by the Securities Administrator. The parties to this Agreement
acknowledge that the performance by the Master Servicer and the Securities
Administrator of its duties under this Section 3.19(b) related to the timely
preparation, execution and filing of Form 10-K is contingent upon such parties
(and any Additional Servicer or Servicing Function Participant) strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.19(b), Section 3.18, Section 3.17, Section 3.16(a) and Section
3.16(b). Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage or claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file such
Form
10-K, where such failure results from the Securities Administrator’s inability
or failure to receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 10-K, not
resulting from its own negligence, bad faith or willful misconduct.
72
(iv) Form
10-K
requires the registrant to indicate (by checking "yes" or "no") that it “(1) has
filed all reports required to be filed by Section 13 or 15(d) of the Exchange
Act during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such
filing requirements for the past 90 days.” At the date of the filing of each
report on Form 10-K with respect to the Trust Fund, the Depositor shall be
deemed to represent to the Securities Administrator that, as of such date,
the
Depositor has filed all such required reports during the preceding 12 months
and
that it has been subject to such filing requirement for the past 90 days. The
Depositor shall notify the Securities Administrator in writing, no later than
March 15th with respect to the filing of a report on Form 10-K, if the answer
to
the questions should be “no.” The Securities Administrator shall be entitled to
rely on such representations in preparing, executing and/or filing any such
report.
(c) Reports
Filed on Form 8-K.
(i) Within
four (4) Business Days after the occurrence of an event requiring disclosure
on
Form 8-K (each such event, a “Reportable Event”), and if requested by the
Depositor, the Securities Administrator shall prepare and file on behalf of
the
Trust Fund a Form 8-K, as required by the Exchange Act, provided
that the
Depositor shall file the initial Form 8-K in connection with the issuance of
the
Certificates. Any disclosure or information related to a Reportable Event or
that is otherwise required to be included in Form 8-K (“Form 8-K Disclosure
Information”) shall be reported by the parties set forth on Exhibit O to the
Depositor and Securities Administrator and directed and approved by the
Depositor pursuant to the following paragraph and the Securities Administrator
will have no duty or liability for any failure hereunder to determine or prepare
any Form 8-K Disclosure Information or any Form 8-K, except as set forth in
the
next paragraph.
(ii) As
set
forth on Exhibit T hereto, for so long as the Trust Fund is subject to the
Exchange Act reporting requirements, no later than the close of business (New
York City time) on the 2nd Business Day after the occurrence of a Reportable
Event (i) the parties to the HarborView Mortgage Loan Trust 2006-13 transaction
shall be required to provide to the Securities Administrator and the Depositor,
to the extent known by a responsible officer thereof, in XXXXX-compatible form
(which may be Word or Excel documents easily convertible to XXXXX format),
or in
such other form as otherwise agreed upon by the Securities Administrator and
such party, the form and substance of any Form 8-K Disclosure Information,
if
applicable, together with an Additional Disclosure Notification and (ii) the
Depositor will approve, as to form and substance, or disapprove, as the case
may
be, the inclusion of the Form 8-K Disclosure Information. The Seller will be
responsible for any reasonable fees and expenses assessed or incurred by the
Securities Administrator in connection with including any Form 8-K Disclosure
Information in Form 8-K pursuant to this paragraph.
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(iii) After
preparing the Form 8-K, the Securities Administrator shall forward
electronically a copy of the Form 8-K to the Depositor
and
XxXxx Xxxxxx LLP.
Promptly, but no later than the close of business on the third Business Day
after the Reportable Event, the Depositor shall notify the Securities
Administrator in writing of any change to or approval of such Form 8-K. In
the
absence of receipt of any written changes or approval, the Securities
Administrator shall be entitled to assume that such Form 8-K is in final form
and
the
Securities Administrator
may proceed with the execution and filing of the Form 8-K. A duly authorized
representative of the Master Servicer shall sign each Form 8-K. If a Form 8-K
cannot be filed on time or if a previously filed Form 8-K needs to be amended,
the Securities Administrator will follow the procedures set forth in subsection
(d) of this Section 3.19. Promptly (but no later than 1 Business Day) after
filing with the Commission, the Securities Administrator will, make available
on
its internet website a final executed copy of each Form 8-K filed by the
Securities Administrator. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of their
respective duties under this Section 3.19(c) related to the timely preparation,
execution and filing of Form 8-K is contingent upon such parties strictly
observing all applicable deadlines in the performance of their duties under
this
Section 3.19(c). Neither the Securities Administrator nor the Master Servicer
shall have any liability for any loss, expense, damage, claim arising out of
or
with respect to any failure to properly prepare, execute and/or timely file
such
Form 8-K, where such failure results from the Securities Administrator’s
inability or failure to receive, on a timely basis, any information from any
other party hereto needed to prepare, arrange for execution or file such Form
8-K, not resulting from its own negligence, bad faith or willful
misconduct.
(d) Suspension
of Reporting; Amendments; Late Filings.
1. On
or
prior to January 30 of the first year in which the Securities Administrator
is
able to do so under applicable law, the Securities Administrator shall prepare
and file a Form 15 Suspension Notification relating to the automatic suspension
of reporting in respect of the Trust Fund under the Exchange Act.
2. In
the
event that the Securities Administrator is unable to timely file with the
Commission all or any required portion of any Form 8-K, 10-D or 10-K required
to
be filed by this Agreement because required disclosure information was either
not delivered to it or delivered to it after the delivery deadlines set forth
in
this Agreement or for any other reason, the Securities Administrator will
promptly notify the Depositor and XxXxx Xxxxxx LLP either via mail, e-mail
or
telephone. In the case of Form 10-D and 10-K, the parties to this Agreement
will
cooperate to prepare and file a Form 12b-25 and a 10-D/A and 10-K/A, as
applicable, pursuant to Rule 12b-25 of the Exchange Act. In the case of Form
8-K, the Securities Administrator will, upon receipt of all required Form 8-K
Disclosure Information and upon the approval and direction of the Depositor,
include such disclosure information on the next Form 10-D. In the event that
any
previously filed Form 8-K, 10-D or 10-K needs to be amended in connection with
any Additional Form 10-D Disclosure, any Additional Form 10-K Disclosure or
any
Form 8-K Disclosure Information or any amendment to such disclosure (other
than
for purposes of restating any Distribution Date Statement), the Securities
Administrator will electronically notify the Depositor and XxXxx Xxxxxx LLP
and
such other parties to the transaction as are affected by such amendment and
such
parties will cooperate to prepare any necessary 8-KA, 10-D/A or 10-K/A. Any
Form
15, Form 12b-25 or any amendment to Form 8-K or 10-D shall be signed by a duly
authorized representative of the Master Servicer. Any Form 10-K amendment shall
be signed by a senior officer of the Master Servicer in charge of the master
servicing function. The parties to this Agreement acknowledge that the
performance by the Master Servicer and the Securities Administrator of their
respective duties under this Section 3.19(d) related to the timely preparation,
execution and filing of Form 15, a Form 12b-25 or any amendment to Form 8-K,
10-D or 10-K is contingent upon each such party performing its duties under
this
Section. Neither the Master Servicer nor the Securities Administrator shall
have
any liability for any loss, expense, damage, claim arising out of or with
respect to any failure to properly prepare, execute and/or timely file any
such
Form 15, Form 12b-25 or any amendments to Forms 8-K, 10-D or 10-K, where such
failure results from the Securities Administrator’s inability or failure to
obtain or receive, on a timely basis, any information from any other party
hereto needed to prepare, arrange for execution or file such Form 15, Form
12b-25 or any amendments to Forms 8-K, 10-D or 10-K, not resulting from its
own
negligence, bad faith or willful misconduct.
74
Any
notice or notification required to be delivered by the Securities Administrator
to the Depositor pursuant to this Section 3.19, may be delivered via facsimile
to (000) 000-0000 or telephonically by calling (000) 000-0000, and any notice
or
notification required to be delivered by the Securities Administrator to XxXxx
Xxxxxx LLP pursuant to this Section 3.19, may be delivered via e-mail to
xxxxxx@xxxxxxxxxxx.xxx and to XXXXX@xxxxxxxxxxx.xxx
or such
other address as may be provided by the Depositor’s counsel from time to
time.
SECTION
3.20. Additional
Information.
Each
of
the parties agrees to provide to the Securities Administrator such additional
information related to such party as the Securities Administrator may reasonably
request, including evidence of the authorization of the person signing any
certification or statement, financial information and reports, and such other
information related to such party or its performance hereunder.
SECTION
3.21. Intention
of the Parties and Interpretation.
Each
of
the parties acknowledges and agrees that the purpose of Section 3.16 through
Section 3.22 of this Agreement is to facilitate compliance by the Securities
Administrator and the Depositor with the provisions of Regulation AB promulgated
by the Commission under the Exchange Act (17 C.F.R. §§ 229.1100 -
229.1123), as such may be amended from time to time and subject to such
clarification and interpretive advice as may be issued by the staff of the
Commission from time to time. Therefore, each of the parties agrees that (a)
the
obligations of the parties hereunder shall be interpreted in such a manner
as to
accomplish that purpose, (b) the parties’ obligations hereunder will be
supplemented and modified as necessary to be consistent with any such
amendments, interpretive advice or guidance, convention or consensus among
active participants in the asset-backed securities markets, advice of counsel,
or otherwise in respect of the requirements of Regulation AB, (c) the parties
shall comply with the reasonable requests made by the Securities Administrator
or the Depositor for delivery of such additional or different information as
the
Securities Administrator or the Depositor may determine in good faith is
necessary to comply with the provisions of Regulation AB, and (d) no amendment
of this Agreement shall be required to effect any such changes in the parties’
obligations as are necessary to accommodate evolving interpretations of the
provisions of Regulation AB.
75
SECTION
3.22. Indemnification.
Each
party required to deliver an assessment of compliance and attestation report
pursuant to Section 3.16 or any additional disclosure pursuant to Section 3.19
and including the Depositor, the Master Servicer, the Securities Administrator,
the Trustee in its capacity as Custodian and any Servicing Function Participant
engaged by such party, respectively (each, an “Item 1122 Responsible Party”)
shall indemnify and hold harmless the Securities Administrator, the Master
Servicer and the Depositor, respectively, and each of their directors, officers,
employees, agents, and affiliates from and against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related costs,
judgments and other costs and expenses arising out of or based upon (a) any
breach by such Item 1122 Responsible Party of any of its obligations hereunder
relating to its obligations as an Item 1122 Responsible Party, including
particularly its obligations to provide any assessment of compliance,
attestation report or compliance statement required under Section 3.16(a),
3.16(b) or 3.17, respectively, or any information, data or materials required
to
be included in any Exchange Act report, (b) any
material misstatement or omission in (x) any compliance certificate delivered
by
it, or by any Servicing Function Participant engaged by it, pursuant to this
Agreement, (y) any assessment or (except in the case of the Trustee, in its
capacity as Custodian) attestation delivered by or on behalf of it, or by any
Servicing Function Participant engaged by it, pursuant to this Agreement, or
(z)
any Additional Form 10-D Disclosure, Additional Form 10-K Disclosure or Form
8-K
Disclosure Information concerning such party and provided by it,
or (c)
the negligence, bad faith or willful misconduct of such Item 1122 Responsible
Party in connection with its performance hereunder relating to its obligations
as an Item 1122 Responsible Party. If the indemnification provided for herein
is
unavailable or insufficient to hold harmless the Master Servicer, the Securities
Administrator, the Depositor or the Seller, as the case may be, then each Item
1122 Responsible Party agrees that it shall contribute to the amount paid or
payable by the Securities Administrator, the Master Servicer and the Depositor,
as applicable, as a result of any claims, losses, damages or liabilities
incurred by the Securities Administrator, the Master Servicer or the Depositor
in such proportion as is appropriate to reflect the relative fault of the
Securities Administrator, the Master Servicer or the Depositor on the one hand
and such Item 1122 Responsible Party on the other. This indemnification shall
survive the termination of this Agreement or the termination of any party to
this Agreement.
76
SECTION
3.23. [Reserved].
SECTION
3.24. Closing
Opinion of Counsel.
On
or
before the Closing Date, the Master Servicer shall cause to be delivered to
the
Depositor, the Seller, the Trustee, and Greenwich Capital Markets, Inc. an
Opinion of Counsel, dated the Closing Date, in form and substance reasonably
satisfactory to the Depositor, Greenwich Capital Markets, Inc., and the Seller
as to the due authorization, execution and delivery of this Agreement by the
Master Servicer and the enforceability thereof.
SECTION
3.25. [Reserved].
SECTION
3.26. Merger
or Consolidation of the Master Servicer.
(a) The
Master Servicer will keep in full force and effect its existence, rights and
franchises as a national banking association under the laws of the jurisdiction
of its incorporation, and will obtain and preserve its qualification to do
business as a foreign corporation in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Certificates or any of the Mortgage Loans
and to perform its duties under this Agreement.
(b) Any
Person into which the Master Servicer may be merged or consolidated, or any
corporation resulting from any merger or consolidation to which the Master
Servicer shall be a party, or any Person succeeding to the business of the
Master Servicer, shall be the successor of the Master Servicer hereunder,
without the execution or filing of any paper or further act on the part of
any
of the parties hereto, anything herein to the contrary
notwithstanding.
SECTION
3.27. Indemnification
of the Trustee, the Master Servicer and the Securities
Administrator.
(a) In
addition to any indemnity required pursuant to Section 3.22 hereof, the Master
Servicer agrees to indemnify the Indemnified Persons for, and to hold them
harmless against, any loss, liability or expense (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part that may be sustained in
connection with, arising out of, or relating to this Agreement or the
Certificates (i) related to the Master Servicer’s failure to perform its duties
in compliance with this Agreement (except as any such loss, liability or expense
shall be otherwise reimbursable pursuant to this Agreement) or (ii) incurred by
reason of the Master Servicer’s willful misfeasance, bad faith or gross
negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder, provided, in each case, that
with
respect to any such claim or legal action (or pending or threatened claim or
legal action), an Indemnified Person shall have given the Master Servicer and
the Depositor written notice thereof promptly after such Indemnified Person
shall have with respect to such claim or legal action knowledge thereof. The
Indemnified Person’s failure to give such notice shall not affect the
Indemnified Person’s right to indemnification hereunder. This indemnity shall
survive the resignation or removal of the Trustee, the Custodian, the Master
Servicer or the Securities Administrator and the termination of this
Agreement.
77
(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise indemnified by the Master Servicer as
referred to in Subsection (a) above or Subsection (c) below.
(c) In
addition to any indemnity required pursuant to Section 3.22 hereof, the
Securities Administrator agrees to indemnify the Indemnified Persons (other
than
the Securities Administrator) for, and to hold them harmless against, any loss,
liability or expense (except as otherwise provided herein with respect to
expenses) (including reasonable legal fees and disbursements of counsel)
incurred on their part (i) in connection with, arising out of, or relating
to
the Securities Administrator’s failure to file any Exchange Act report which the
Securities Administrator is responsible for filing in accordance with Section
3.19, (ii) by reason of the Securities Administrator’s negligence or willful
misconduct in the performance of such obligations pursuant to Section 3.19
or
(iii) by reason of the Securities Administrator’s reckless disregard of such
obligations pursuant to Section 3.19, provided, in each case, that with respect
to any such claim or legal action (or pending or threatened claim or legal
action), an Indemnified Person shall have given the Securities Administrator
written notice thereof promptly after such Indemnified Person shall have with
respect to such claim or legal action knowledge thereof. The Indemnified
Person’s failure to give such notice shall not affect the Indemnified Person’s
right to indemnification hereunder. This indemnity shall survive the resignation
or removal of the Trustee, the Master Servicer or the Securities Administrator
and the termination of this Agreement.
SECTION
3.28. Limitations
on Liability of the Master Servicer and Others; Indemnification of Trustee
and
Others.
Subject
to the obligation of the Master Servicer to indemnify the Indemnified Persons
pursuant to Section 3.27:
(a) The
Master Servicer has undertaken to perform only such duties as are specifically
set forth in this Agreement. Neither the Master Servicer nor any of the
directors, officers, employees or agents of the Master Servicer shall be under
any liability to the Indemnified Persons, the Depositor, the Trust Fund or
the
Certificateholders for taking any action or for refraining from taking any
action in good faith pursuant to this Agreement, or for errors in judgment;
provided,
however,
that
this provision shall not protect the Master Servicer or any such Person against
any breach of warranties or representations made herein or any liability which
would otherwise be imposed by reason of such Person’s willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder.
(b) The
Master Servicer and any director, officer, employee or agent of the Master
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
78
(c) The
Master Servicer, the Trustee (in its individual corporate capacity and as
Trustee), the Custodian (including for such purpose, the Trustee acting in
its
capacity as Custodian) and any director, officer, employee or agent of the
Master Servicer, the Trustee or the Custodian shall be indemnified by the Trust
Fund and held harmless thereby against any loss, liability or expense (except
as
otherwise provided herein with respect to expenses) (including reasonable legal
fees and disbursements of counsel) incurred on their part that may be sustained
in connection with, arising out of, or relating to, this Agreement, the
Certificates or any Servicing Agreement or the transactions contemplated hereby
or thereby (except, with respect to the Master Servicer, to the extent that
the
Master Servicer is indemnified by the Servicer thereunder), other than (i)
with
respect to the Master Servicer only, any such loss, liability or expense related
to the Master Servicer’s failure to perform its duties in compliance with this
Agreement or (ii) with respect to the Master Servicer or Custodian only, any
such loss, liability or expense incurred by reason of the Master Servicer’s or
the Custodian’s willful misfeasance, bad faith or gross negligence in the
performance of its own duties hereunder or by reason of reckless disregard
of
its own obligations and duties hereunder or under a custodial
agreement.
(d) The
Master Servicer shall not be under any obligation to appear in, prosecute or
defend any legal action that is not incidental to its duties under this
Agreement and that in its opinion may involve it in any expense or liability;
provided,
however,
the
Master Servicer may in its discretion, undertake any such action which it may
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Trust Fund and the
Certificateholders hereunder. In such event, the legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs
and
liabilities of the Trust Fund, and the Master Servicer shall be entitled to
be
reimbursed therefor out of the Distribution Account as provided by Section
4.03.
Nothing in this Section 3.28(d) shall affect the Master Servicer’s obligation to
supervise, or to take such actions as are necessary to enforce, the servicing
and administration of the Mortgage Loans pursuant to Sections 3.01 and
3.03.
(e) In
taking
or recommending any course of action pursuant to this Agreement, unless
specifically required to do so pursuant to this Agreement, the Master Servicer
shall not be required to investigate or make recommendations concerning
potential liabilities which the Trust Fund might incur as a result of such
course of action by reason of the condition of the Mortgaged Properties but
shall give notice to the Trustee if it has notice of such potential
liabilities.
(f) The
Master Servicer shall not be liable for any acts or omissions of any Servicer,
except as otherwise expressly provided herein.
SECTION
3.29. Master
Servicer Not to Resign.
(a)
Except as provided in Section 3.31, the Master Servicer shall not resign from
the obligations and duties hereby imposed on it except upon a determination
that
any such duties hereunder are no longer permissible under applicable law and
such impermissibility cannot be cured. Any such determination permitting the
resignation of the Master Servicer shall be evidenced by an Independent Opinion
of Counsel (delivered at the expense of the Master Servicer) to such effect
delivered to the Trustee. No such resignation by the Master Servicer shall
become effective until the Trustee or a successor to the Master Servicer
reasonably satisfactory to the Trustee shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section 7.02 hereof.
The Trustee shall notify each Rating Agency of the resignation of the Master
Servicer.
79
(b)
If,
at any time, Xxxxx Fargo Bank, N.A., as Master Servicer resigns under this
Section 3.29, or sells or assigns its rights and obligations under Section
3.31,
or is removed as Master Servicer pursuant to Section 7.01, then at such time
Xxxxx Fargo Bank, N.A. also shall resign (and shall be entitled to resign)
as
Securities Administrator, Administrator, Paying Agent and Certificate Registrar
under this Agreement. No such resignation by Xxxxx Fargo Bank, N.A. as
Securities Administrator, Administrator, Paying Agent or Certificate Registrar
under this Agreement shall become effective until a successor Securities
Administrator, successor Administrator, successor Paying Agent and successor
Certificate Registrar reasonably satisfactory to the Depositor shall have
assumed the responsibilities and obligations of the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar in accordance with this
Agreement. The Securities Administrator shall notify each Rating Agency of
the
resignation of Xxxxx Fargo Bank, N.A. as the Securities Administrator,
Administrator, Paying Agent and Certificate Registrar.
SECTION
3.30. Successor
Master Servicer.
In
connection with the appointment of any successor master servicer or the
assumption of the duties of the Master Servicer, the Trustee may make such
arrangements for the compensation of such successor master servicer out of
payments on the Mortgage Loans as the Trustee and such successor master servicer
shall agree which in no case shall exceed the Master Servicing Fee. If the
successor master servicer does not agree that the proposed compensation is
fair,
such successor master servicer shall obtain two quotations of market
compensation from third parties actively engaged in the servicing of
single-family mortgage loans; provided,
however,
that
each Rating Agency shall confirm in writing that any appointment of a successor
Master Servicer (other than the Trustee) will not result in a downgrade in
the
then current rating of any Class of Certificates.
SECTION
3.31. Sale
and Assignment of Master Servicing.
The
Master Servicer may sell and assign its rights and delegate its duties and
obligations in their entirety as Master Servicer under this Agreement, with
the
written consent of the Depositor, which consent shall not be unreasonably
withheld or delayed, and provided further that: (i) the purchaser or transferee
accepting such assignment and delegation (a) shall be a Person which shall
be
qualified to service mortgage loans for Xxxxxx Xxx or Xxxxxxx Mac; (b) shall
have a net worth of not less than $10,000,000 (unless otherwise approved by
each
Rating Agency pursuant to clause (ii) below); (c) shall be reasonably
satisfactory to the Depositor (as evidenced in writing signed by the Depositor);
and (d) shall execute and deliver to the Trustee an agreement, in form and
substance reasonably satisfactory to the Trustee, which contains an assumption
by such Person of the due and punctual performance and observance of each
covenant and condition to be performed or observed by it as master servicer
under this Agreement or any custodial agreement from and after the effective
date of such agreement; (ii) each Rating Agency shall be given prior written
notice of the identity of the proposed successor to the Master Servicer and
each
Rating Agency’s ratings of the Certificates in effect immediately prior to such
assignment, sale and delegation will not be downgraded, qualified or withdrawn
as a result of such assignment, sale and delegation, as evidenced by a letter
to
such effect delivered to the Master Servicer and the Trustee; and (iii) the
Master Servicer assigning and selling the master servicing shall deliver to
the
Trustee and the Depositor an Officer’s Certificate and an Independent Opinion of
Counsel, (delivered at the Master Servicer’s expense) each stating that all
conditions precedent to such action under this Agreement have been completed
and
such action is permitted by and complies with the terms of this Agreement.
No
such assignment or delegation shall affect any liability of the Master Servicer
arising prior to the effective date thereof.
80
SECTION
3.32. Reporting
Requirements of the Commission
To
the
extent that, following the Closing Date, the content of Forms 8-K, 10-D,
10-K,
15 or other Forms required by the Exchange Act and the Rules and Regulations
of
the Commission and the time by which such Forms are required to be filed,
differs from the provisions of this Agreement, the Master Servicer and
the
Securities Administrator hereby agree that each shall reasonably cooperate
to
amend the provisions of this Agreement (in accordance with Section 12.01)
in
order to comply with such amended reporting requirements and such amendment
of
this Agreement. Notwithstanding the foregoing, neither the Master Servicer
nor
the Securities Administrator shall be obligated to enter into any amendment
pursuant to this Section that adversely affects its obligations or immunities
under this Agreement.
SECTION
3.33. Duties
of the Credit Risk Manager.
(a) The
Certificateholders, by their purchase and acceptance of the Certificates,
appoint Xxxxxxx Fixed Income Services Inc., formerly known as The Murrayhill
Company, as Credit Risk Manager. For and on behalf of the Depositor,
the Credit
Risk Manager will provide reports and recommendations concerning certain
delinquent and defaulted Mortgage Loans, and as to the collection of
any
Prepayment Premium Amounts with respect to the Mortgage Loans. Such reports
and
recommendations will be based upon information provided pursuant to a
Credit
Risk Management Agreement to the Credit Risk Manager by the Servicers
and/or the
Master Servicer. The Credit Risk Manager shall look solely to the Servicers
and/or the Master Servicer for all information and data (including loss
and
delinquency information and data) and loan level information and data
relating
to the servicing of the Mortgage Loans and neither the Securities Administrator
nor the Trustee shall have any obligation to provide any such information
to the
Credit Risk Manager and shall not otherwise have any responsibility under
the
Credit Risk Management Agreement.
(b) On
or
about the 15th calendar day of each month, the Credit Risk Manager shall
have
prepared and shall make available to the Depositor, the Securities Administrator
and each Certificateholder, the following reports (each such report to
be made
in a format compatible with XXXXX filing requirements):
(i) Watchlist
Report:
A
listing of individual Mortgage Loans that are of concern to the Credit
Risk
Manager. Each Watchlist Report shall contain a listing of Mortgage Loans
in any
delinquency status, including current and paid-off loans, and may contain
the
comments of the Credit Risk Manager in its sole discretion. The Watchlist
Report
shall be presented in substantially the same format attached hereto as
Exhibit
V-1;
81
(ii) Loss
Severity Report:
A
compilation and summary of all losses, indicating the loan loss severity
for the
Mortgage Loans. Each Loss Severity Report shall include detail of all
losses
reported by the related Servicer as Realized Losses, except those for
which the
related Servicer has not provided detail adequate for reporting purposes.
The
Loss Severity Report shall be presented in substantially the same format
attached hereto as Exhibit V-2;
(iii) Prepayment
Premiums Report:
A
summary of Prepayment Premium Amounts assessed or waived by the related
Servicer. The Prepayment Premiums Report shall be presented in substantially
the
same format attached hereto as Exhibit V-3; and
(iv) Analytics
Report:
Analytics Reports shall include statistical and/or graphical portrayals
of:
|
(A)
|
Delinquency
Trend:
The delinquency trend, over time, of the Mortgage
Loans;
|
|
(B)
|
Prepayment
Analysis:
The constant prepayment rate “CPR” experience of the Mortgage Loans;
and
|
|
(C)
|
Standard
Default Assumption:
The Standard Default Assumption experience of the Mortgage
Loans.
|
The
Analytics Report shall be presented in substantially the same format
attached
hereto as Exhibit V-4.
The
Credit Risk Manager shall make such reports and any additional information
reasonably requested by the Depositor available each month to
Certificateholders, the Securities Administrator and the Rating Agencies
via the
Credit Risk Manager’s internet website. The Credit Risk Manager’s internet
website shall initially be located at xxxxx://xxxxxxx.xxxxxxx.xxx.
The
user name for access to the website shall be the Certificateholder’s e-mail
address and the password shall be “Harborview 2006-13.” The Securities
Administrator shall not have any obligation to review such reports or
otherwise
monitor or supervise the activities of the Credit Risk Manager.
SECTION
3.34. Limitation
Upon Liability of the Credit Risk Manager.
Except
as
provided pursuant to Section 3.35, neither the Credit Risk Manager, nor
any of
the directors, officers, employees or agents of the Credit Risk Manager,
shall
be under any liability to the Trustee, the Securities Administrator,
the
Certificateholders or the Depositor for any action taken or for refraining
from
the taking of any action in good faith pursuant to this Agreement, in
reliance
upon information provided by Servicers and/or the Master Servicer under
the
applicable Credit Risk Management Agreement or for errors in judgment;
provided,
however,
that
this provision shall not protect the Credit Risk Manager or any such
person
against liability that would otherwise be imposed by reason of willful
malfeasance, bad faith or gross negligence in its performance of its
duties or
by reason of reckless disregard for its obligations and duties under
this
Agreement or the Credit Risk Management Agreements. The Credit Risk Manager
and
any director, officer, employee or agent of the Credit Risk Manager may
rely in
good faith on any document of any kind prima facie properly executed
and
submitted by any Person respecting any matters arising hereunder, and
may rely
in good faith upon the accuracy of information furnished by the Servicer
and/or
the Master Servicer pursuant to the applicable Credit Risk Management
Agreement
in the performance of its duties thereunder and hereunder.
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SECTION
3.35. Indemnification
by the Credit Risk Manager.
The
Credit Risk Manager agrees to indemnify the Depositor, the Securities
Administrator, the Master Servicer and the Trustee, and each of their
respective
directors, officers, employees and agents and the Trust Fund and hold
each of
them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and
any other
costs, fees and expenses that any of them may sustain arising out of
or based
upon the engagement of any Subcontractor in violation of Section 3.13(e)
or any
failure by the Credit Risk Manager to deliver any information, report,
certification, accountants’ letter or other material when and as required under
this Agreement, including any report under Sections 3.19(a) or (b).
SECTION
3.36. Removal
of Credit Risk Manager.
The
Credit Risk Manager may be removed as Credit Risk Manager by Certificateholders
holding not less than a 66-2/3% Voting Interests in the Trust, in the
exercise
of its or their sole discretion, at any time, without cause, upon ten
(10) days
prior written notice. The Certificateholders shall provide such written
notice
to the Trustee and upon receipt of such notice, the Trustee shall provide
written notice to the Credit Risk Manager of its removal, effective upon
receipt
of such notice.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts
(a) The
Master Servicer shall enforce the obligation of each Servicer to establish
and
maintain one or more custodial accounts (the “Servicing
Accounts”)
in
accordance with the applicable Servicing Agreement, with records to be
kept with
respect thereto on a Mortgage Loan by Mortgage Loan basis, into which
accounts
shall be deposited within 48 hours (or as of such other time specified
in the
related Servicing Agreement) of receipt all collections of principal
and
interest on any Mortgage Loan and with respect to any REO Property received
by a
Servicer, including Principal Prepayments, Prepayment Premium Amounts,
Insurance
Proceeds, Liquidation Proceeds, Recoveries and advances made from the
Servicer’s
own funds (less, in the case of each Servicer, the applicable servicing
compensation, in whatever form and amounts as permitted by the applicable
Servicing Agreement) and all other amounts to be deposited in each such
Servicing Account. The Servicer is hereby authorized to make withdrawals
from
and deposits to the related Servicing Account for purposes required or
permitted
by this Agreement and the applicable Servicing Agreement. For the purposes
of
this Agreement, Servicing Accounts shall also include such other accounts
as the
Servicer maintains for the escrow of certain payments, such as taxes
and
insurance, with respect to certain Mortgaged Properties. Each Servicing
Agreement sets forth the criteria for the segregation, maintenance and
investment of each related Servicing Account, the contents of which are
acceptable to the parties hereto as of the date hereof and changes to
which
shall not be made unless such changes are made in accordance with the
provisions
of Section 12.01 hereof.
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(b) [Reserved];
(c) To
the
extent provided in the related Servicing Agreement and subject to this
Article
IV, on or before each applicable Servicer Remittance Date, each Servicer
shall
withdraw or shall cause to be withdrawn from the related Servicing Account
and
shall immediately remit or cause to be remitted to the Securities Administrator
for deposit into the Distribution Account, amounts representing the following
collections and payments (other than with respect to principal of or
interest on
the Mortgage Loans due on or before the Cut-off Date) with respect to
each of
the Mortgage Loans it is servicing:
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof
advanced
by the Servicers pursuant to the Servicing Agreements which were due
on or
before the related Due Date, net of the amount thereof comprising the
Servicing
Fees;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicers
with
respect to such Mortgage Loans in the related Prepayment Period, with
interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees;
(iii) Principal
Prepayments in part received by the Servicers for such Mortgage Loans
in the
related Prepayment Period;
(iv) Recoveries
received by the Servicers with respect to such Mortgage Loans; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the related Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided
in
Section 4.01(c), 4.02 and 4.03; to reimburse the Master Servicer or a
Servicer
for Advances which have been recovered by subsequent collection from
the related
Mortgagor, to remove amounts deposited in error, to remove fees, charges
or
other such amounts deposited on a temporary basis, or to clear and terminate
the
account at the termination of this Agreement in accordance with Section
10.01 or
as otherwise provided in the Servicing Agreements. As provided in Sections
4.01(c) and 4.02(b), certain amounts otherwise due to the Servicers may
be
retained by them and need not be remitted to the Securities
Administrator.
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SECTION
4.02. Distribution
Account.
(a) The
Securities Administrator shall establish and maintain in the name of
the
Trustee, for the benefit of the Trust Fund and the Certificateholders,
the
Distribution Account as a segregated account or accounts, each of which
shall be
an Eligible Account. The Distribution Account shall constitute a trust
account
of the Trust Fund segregated on the books of the Securities Administrator
and
held by the Securities Administrator in trust in its Corporate Trust
Office, and
the Distribution Account and the funds deposited therein shall not be
subject
to, and shall be protected from, all claims, liens, and encumbrances
of any
creditors or depositors of the Securities Administrator or the Master
Servicer
(whether made directly, or indirectly through a liquidator or receiver
of the
Trustee, the Securities Administrator or the Master Servicer). All Permitted
Investments shall mature or be subject to redemption or withdrawal on
or before,
and shall be held until, the immediately succeeding Distribution Date.
The
Securities Administrator, Trustee or their affiliates are permitted to
receive
additional compensation that could be deemed to be in the their economic
self-interest for (i) serving as investment adviser, administrator, servicing
agent, custodian or sub-custodian with respect to certain of the Permitted
Investments, (ii) using affiliates to effect transactions in certain
Permitted
Investments and (iii) effecting transactions in certain Permitted Investments.
The Master Servicer and the Securities Administrator will deposit in
the
Distribution Account as identified by the Master Servicer or the Securities
Administrator and as received by the Master Servicer or the Securities
Administrator, the following amounts:
(i) any
amounts withdrawn from a Servicing Account pursuant to Section 4.01(c)
and the
Servicing Agreements and remitted to the Securities Administrator;
(ii) any
amounts required to be deposited in the Distribution Account by the Master
Servicer with respect to the Mortgage Loans pursuant to this Agreement,
including (a) Advances and any Compensating Interest Payments required
to be
made by the Master Servicer to the extent required but not made by the
Servicers
and (b) the amount of any Insurance Proceeds or Liquidation Proceeds
received by
or on behalf of the Master Servicer which were not deposited in a Servicing
Account;
(iii) any
Insurance Proceeds, Liquidation Proceeds or Recoveries received by or
on behalf
of the Master Servicer which were not deposited into a Servicing Account;
(iv) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller
or the
related Originator under this Agreement or the related Purchase Agreement,
as
applicable, any Substitution Adjustments pursuant to Section 2.03 of
this
Agreement and all proceeds of any Mortgage Loans or property acquired
with
respect thereto purchased by the Terminator pursuant to Section
10.01;
(v) any
amounts required to be deposited by the Master Servicer with respect
to losses
on investments of deposits in the Distribution Account; and
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