Current Report — Form 8-K Filing Table of Contents
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1: 8-K Current Report HTML 28K
2: EX-4.1 Instrument Defining the Rights of Security Holders HTML 1.12M
3: EX-99.1 Miscellaneous Exhibit HTML 71K
4: EX-99.2 Miscellaneous Exhibit HTML 140K
EX-4.1 — Instrument Defining the Rights of Security Holders
SECTION
12.02. Recordation of Agreement; Counterparts.
125
SECTION
12.03. Limitation on Rights of Certificateholders.
125
SECTION
12.04. Governing Law; Jurisdiction.
127
SECTION
12.05.
Notices.
127
SECTION
12.06. Severability of Provisions.
127
SECTION
12.07. Article and Section References.
128
SECTION
12.08. Notices to each Rating Agencies.
128
SECTION
12.09. Further Assurances.
129
SECTION
12.10. Benefits of Agreement.
129
SECTION
12.11. Acts of Certificateholders.
129
SECTION
12.12. Successors and Assigns.
130
SECTION
12.13. Provision of Information.
130
SECTION
12.14. Tax Treatment of Class X-1 Certificates.
130
EXHIBITS
AND SCHEDULES:
Exhibit
A-1 Form of Class A Certificate
A-1
Exhibit
A-2 Form of Class X Certificate
A-2
Exhibit
A-3 Form of Class PO Certificate
A-3
Exhibit
B Form of Residual Certificate
B-1
Exhibit
C Form of Subordinate Certificate
C-1
Exhibit
D [Reserved]
D-1
Exhibit
E Form of Reverse of the Certificates
E-1
Exhibit
F Request for Release
F-1
Exhibit
G-1 Form of Receipt of Mortgage Note
G-1-1
Exhibit
G-2 Form of Interim Certification of Trustee
G-2-1
Exhibit
G-3 Form of Final Certification of Trustee
G-3-1
Exhibit
H Form of Lost Note Affidavit
H-1
Exhibit
I-1 Form of ERISA Representation For Residual Certificates
I-1-1
Exhibit
I-2 Form of ERISA Representation For ERISA-Restricted
Certificates
I-2-1
Exhibit
J-1 Form of Investment Letter Non-Rule 144A
J-1-1
iii
Exhibit
J-2 Form of Rule 144A Investment Letter
J-2-1
Exhibit
K Form of Transferor Certificate
K-1
Exhibit
L Transfer Affidavit for Residual Certificate Pursuant to Section
6.02(e)
L-1
Exhibit
M List of Servicing Agreements
M-1
Exhibit
N-1 Form of Transfer Certificate (Restricted Global Security to Regulation
S Security)
N-1-1
Exhibit
N-2 Form of Transfer Certificate (Regulation S Security to Restricted
Global Security)
N-2-1
Exhibit
O Financial Guaranty Insurance Policy
O-1
Exhibit
P Form of Trustee Certification
P-1
Exhibit
Q [Reserved]
Q-1
Exhibit
R Form of Certification Regarding Servicing Criteria to be Addressed
in
Report on Assessment of Compliance
R-1
Exhibit
S Transaction Parties
S-1
Schedule
I Mortgage Loan Schedule
Schedule
II [Reserved]
iv
This
Pooling Agreement is dated as of January 1, 2006 (the “Agreement”),
among
GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the
“Depositor”),
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller
(the “Seller”)
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(the
“Trustee”).
PRELIMINARY
STATEMENT:
Through
this Agreement, the Depositor intends to cause the issuance and sale of the
HarborView Mortgage Loan Trust 2006-1 Mortgage Loan Pass-Through Certificates,
Series 2006-1 (the “Certificates”)
representing in the aggregate the entire beneficial ownership of the Trust,
the
primary assets of which are the Mortgage Loans (as defined below).
The
Depositor intends to sell the Certificates to be issued hereunder in multiple
classes, which in the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The Certificates will consist
of
twenty-three classes of certificates, designated as (i) the Class 1-A1A
Certificates, (ii) the Class 1-A1B Certificates, (iii) the Class 2-A1A
Certificates, (iv) the Class 2-A1B Certificates, (v) the Class 2-A1C
Certificates, (vi) the Class X-1 Certificates, (vii) the Class X-2A1B
Certificates, (viii) the Class PO-1 Certificates, (ix) the Class PO-2A1B
Certificates, (x) the Class A-R Certificates, (xi) the Class B-1 Certificates,
(xii) the Class B-2 Certificates, (xiii) the Class B-3 Certificates, (xiv)
the
Class B-4 Certificates, (xv) the Class B-5 Certificates, (xvi) the Class B-6
Certificates, (xvii) the Class B-7 Certificates, (xviii) the Class B-8
Certificates, (xix) the Class B-9 Certificates, (xx) the Class B-10
Certificates, (xxi) the Class B-11 Certificates, (xxii) the Class B-12
Certificates and (xxiii) the Class A-R-II Certificates.
As
provided herein, the Trustee shall elect that the Trust Fund (exclusive of
the
assets held in the Basis Risk Reserve Fund (the “Excluded
Trust Property”))
be
treated for federal income tax purposes as comprising three real estate mortgage
investment conduits (each, a “REMIC”
or,
in
the alternative, the “Lower-Tier
REMIC,”
the
“Middle-Tier
REMIC”
and
the
“Upper-Tier
REMIC”).
Each
Certificate, other than the Class A-R and Class A-R-II Certificates, shall
represent ownership of a regular interest in the Upper-Tier REMIC, as described
herein. In addition, the MTA and LIBOR Certificates represent the right to
receive payments in respect of Basis Risk Shortfalls from the Basis Risk Reserve
Fund as provided in Section 5.07. The owners of the Class X-1 and Class X-2A1B
Certificates beneficially own the Basis Risk Reserve Fund. The Class A-R-II
Certificate represents ownership of the sole class of residual interest in
the
Lower-Tier REMIC, and the Class A-R Certificates represent ownership of the
sole
class of residual interest in the Middle-Tier and the Upper-Tier
REMICs.
The
Lower-Tier REMIC shall hold as assets all property of the Trust Fund, other
than
the Excluded Trust Property and the Lower-Tier REMIC Interests and the
Middle-Tier REMIC Interests. The Middle-Tier REMIC shall hold as assets the
uncertificated Lower-Tier Interests, other than the Class LT-R Interest. Each
such Lower-Tier Interest is hereby designated as a REMIC regular interest.
The
Upper-Tier REMIC shall hold as assets the uncertificated Middle-Tier Interests,
other than the Class MT-R Interest. Each such Middle-Tier Interest is hereby
designated as a REMIC regular interest.
1
Lower-Tier
REMIC Interests
The
following table specifies the Class designation, interest rate, and initial
principal amount for each Lower-Tier REMIC Interest:
Designation
Interest
Rate
Initial
Principal
Balance
Related
group
LT-Group
1
(1
)
$
581,362,714.40
Group
1
LT-Group
1 SCA
(1
)
$
611,066.81
Group
1
LT-Group
2
(2
)
$
1,160,620,209.29
Group
2
LT-Group
2 SCA
(2
)
$
1,219,940.50
Group
2
LT-R
(3
)
(3
)
N/A
(1)
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Interests is a per annum
rate
equal to the Group 1 Net WAC for such Distribution Date.
(2)
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Lower-Tier Interests is a per annum
rate
equal to the Group 2 Net WAC for such Distribution Date.
(3)
The
LT-R Interest is the sole class of residual interests in the Lower-Tier
REMIC. It does not have an interest rate or a principal balance.
Ownership
of the LT-R Interest is represented by the Class A-R-II
Certificate.
On
each
Distribution Date, Available Funds for both Loan Groups shall be allocated
among
the Lower-Tier Interests in the following order of priority:
(i)
First,
concurrently to the LT-Group 1 SCA and LT-Group 2 SCA Interests as
follows:
(a)
to
the LT-Group 1 SCA Interest until its principal balance equals one
percent
of the Subordinate Component for Loan Group 1 for the immediately
succeeding Distribution Date;
(b)
to
the LT-Group 2 SCA Interest until its principal balance equals one
percent
of the Subordinate Component for Loan Group 2 for the immediately
succeeding Distribution Date; and
(c)
to
the LT-Group 1 SCA and the LT-Group 2 SCA Interests the amount necessary
to cause the ratio of the principal balance of each such Lower-Tier
Interest to the principal balances of the other such Lower-Tier Interest
to equal the ratio of the Subordinate Component for the Loan Group
related
to such Lower-Tier Interest to the Subordinate Component related
to the
other Loan Group for the immediately succeeding Distribution
Date;
(ii)
Second,
concurrently to the LT-Group 1 and LT-Group 2 Interests until
-
2
(a)
the
principal balance of the LT-Group 1 Interest equals the excess of
(I) the
Pool Collateral Balance for Loan Group 1 for the immediately succeeding
Distribution Date, over (II) the principal balance of the LT-Group
1 SCA
Interest for such Distribution Date, after taking into account
distributions pursuant to priority (i) above for such Distribution
Date,
and
(b)
the
principal balance of the LT-Group 2 Interest equals the excess of
(I) the
Pool Collateral Balance for Loan Group 2 as of for the immediately
succeeding Distribution Date, over (II) the principal balance of
the
LT-Group 2 SCA Interest for such Distribution Date, after taking
into
account distributions pursuant to priority (i) above for such Distribution
Date,
(iii)
Third,
to make interest distributions on the Lower-Tier Interests at the
interest
rates described above, provided,
however,
that any Net Deferred Interest shall be allocated among and increase
the
principal balances of the Lower-Tier Interests in the same order
and
priority in which principal is distributed pursuant to priorities
(i) and
(ii) above.
(iv)
Finally,
any remaining amounts to the LT-R
Interest.
On
any
Distribution Date, after all distributions of Available Funds, Realized Losses
shall be allocated among the Lower-Tier Interests in the same order of priority
in which principal is distributed among such Lower-Tier Interests pursuant
to
priorities (i) and (ii) above.
Middle-Tier
REMIC Interests
Designation
Interest
Rate
Initial
Principal Balance
Corresponding
Class of Certificates
MT1-A1A
(1
)
$
156,259,100.00
Class
1-A1A
MY1-A1B
(1
)
$
104,172,000.00
Class
1-A1B
MT2-A1A
(2
)
$
311,954,500.00
Class
2-A1A
MT2-A1B
(2
)
$
129,980,500.00
Class
2-A1B
MT2-QA1B
(2
)
$
124,781,380.00
N/A
MT2-ZAIB
(2
)
$
2,599,610.00
N/A
MT2-YA2B
(2
)
$
2,599,610.00
N/A
MT2-A1C
(2
)
$
77,988,000.00
Class
2-A1C
MTB-1
(3
)
$
17,439,000.00
Class
B-1
MTB-2
(3
)
$
12,206,500.00
Class
B-2
MTB-3
(3
)
$
7,411,000.00
Class
B-3
MTB-4
(3
)
$
6,975,000.00
Class
B-4
MTB-5
(3
)
$
6,103,500.00
Class
B-5
MTB-6
(3
)
$
5,667,500.00
Class
B-6
MTB-7
(3
)
$
4,795,500.00
Class
B-7
MTB-8
(3
)
$
4,359,500.00
Class
B-8
MTB-9
(3
)
$
3,923,500.00
Class
B-9
MTB-10
(3
)
$
6,975,000.00
Class
B-10
MTB-11
(3
)
$
8,719,000.00
Class
B-11
MTB-12
(3
)
$
6,975,365.50
Class
B-12
MT1-Q
(1
)
$
250,018,760.00
N/A
MT1-Z
(1
)
$
5,208,620.00
N/A
MT1-Y
(1
)
$
5,208,620.00
N/A
MT2-Q
(2
)
$
374,344,800.00
N/A
MT2-Z
(2
)
$
7,798,850.00
N/A
MT2-Y
(2
)
$
7,798,850.00
N/A
MTB-Q
(3
)
$
87,888,670.56
N/A
MTB-Z
(3
)
$
1,831,013.97
N/A
MTB-Y
(3
)
$
1,831,013.97
N/A
MT-R
(4
)
(4
)
Class
A-R
3
(1)
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
1
and LT-Group 1 SCA Interests for such Distribution Date (the Group
1 Net
WAC).
(2)
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
2
and LT-Group 2 SCA Interests for such Distribution Date (the Group
2 Net
WAC).
(3)
The
interest rate with respect to any Distribution Date (and the related
Accrual Period) for each of these Middle-Tier Interests is a per
annum
rate equal to the weighted average of the interest rates on the LT-Group
1
SCA and LT-Group 2 SCA Interests for such Distribution Date (the
“Subordinate Net WAC).
(4)
The
MT-R Interest is the sole class of residual interests in the Middle-Tier
REMIC. It does not have an interest rate or a principal balance.
Ownership
of the MT-R Interest is represented by the Class A-R
Certificates.
On
each
Distribution Date, Available Funds, which shall have been distributed in respect
of the Lower-Tier Interests in the Lower-Tier REMIC, shall be allocated among
the Middle-Tier Interests in the following order of priority:
(i)
First,
to the MT2-ZA1B, MT2-YA1B, MT1-Z, MT1-Y, MT2-Z, MT2-Y, MTB-Z, and
MTB-Y
Interests in reduction of their principal balances as follows -
(a)
Concurrently
to the MT2-ZA1B, MT1-Z, MT2-Z, and MTB-Z Interests the amount, if
any,
required to reduce (I) the principal balance of the MT2-ZA1B Interest
to
the MT2-ZA1B Target Balance for such Distribution Date, (II) the
principal
balance of the MT1-Z Interest to the MT1-Z Target Balance for such
Distribution Date, (III) the principal balance of the MT2-Z Interest
to
the MT2-Z Target Balance for such Distribution Date, and (IV) the
principal balance of the MTB-Z Interest to the MTB-Z Target Balance
for
such Distribution Date;
4
(b)
Concurrently
to the MT2-YA1B, MT1-Y, MT2-Y, and MTB-Y Interests the amount, if
any,
required to reduce (I) the principal balance of the MT2-YA1B Interest
to
the MT2-YA1B Target Balance for such Distribution Date, (II) the
principal
balance of the MT1-Y Interest to the MT1-Y Target Balance for such
Distribution Date, (III) the principal balance of the MT2-Y Interest
to
the MT2-Y Target Balance for such Distribution Date, and (IV) the
principal balance of the MTB-Y Interest to the MTB-Y Target Balance
for
such Distribution Date; and
(c)
Concurrently
to the MT2-ZA1B, MT2-YA1B, MT1-Z, MT1-Y, MT2-Z, MT2-Y, MTB-Z, and
MTB-Y
Interests as follows: (I) to the MT2-ZA1b and MT2-YA1b Interests,
in
proportion to their principal balances, after taking into account
distributions pursuant to priorities (a) and (b) above, until the
sum of
their principal balances equals 2% of the aggregate Class Principal
Balance of the Class 2-A1B Certificates immediately after such
Distribution Date, (II) to the MT1-Z and MT1-Y Interests, in proportion
to
their principal balances, after taking into account distributions
pursuant
to priorities (a) and (b) above, until the sum of their principal
balances
equals 2% of the aggregate Class Principal Balance of the Class
1-A1A and
Class 1-A1B Certificates immediately after such Distribution Date,
(III)
to the MT2-Z and MT2-Y Interests, in proportion to their principal
balances, after taking into account distributions pursuant to priorities
(a) and (b) above, until the sum of their principal balances equals
2% of
the aggregate Class Principal Balance of the Class 2-A1A and Class
2-A1C
Certificates immediately after such Distribution Date, (IV) to
the MTB-Z
and MTB-Y Interests, in proportion to their principal balances,
after
taking into account distributions pursuant to priorities (a) and
(b)
above, until the sum of their principal balances equals 2% of the
aggregate Class Principal Balance of the Class B1, Class B2, Class
B3,
Class B4, Class B5, Class B6, Class B7, Class B-8, Class B-9, Class
B-10,
Class B-11, and Class B-12 Certificates immediately after such
Distribution Date,
(ii)
Second,
concurrently to the MT-A1A, MT-A1B, MT-2A1A, MT-2A1B, MT-2A1C,
MT-B1,
MT-B2, MT-B3. MT-B4, MT-B5, MT-B6, MT-B7, MT-B8, MT-B9, MT-B10,
MT-B11,
and MT-B12 Interests until the principal balance of each such Lower-Tier
Interest equals 50% of the Class Principal Balance or Balances
of the
Corresponding Class or Classes of Certificates for such Middle-Tier
Interest immediately after such Distribution
Date;
5
(iii)
Third,
concurrently to the MT2-QA1B, MT1-Q, MT2-Q, and MTB-Q Interests
until (a)
the principal balance of the MT2-QA1B Interest equals the excess
of (I)
the aggregate Class Principal Balance of the Class 2-A1B and Class
PO-2
Certificates immediately after such Distribution Date over (II)
the
aggregate of the principal balances of the MT2-A1B, MT2-ZA1B, and
MT2-YA1B
Interests after taking into account the distributions made pursuant
to
priorities (i) and (ii) above on such Distribution Date, (b) the
principal
balance of the MT1-Q Interest equals the excess of (I) the aggregate
Class
Principal Balance of the Class 1-A1A, Class 1-A1B, Class A-R, and
Class
PO-1 Certificates immediately after such Distribution Date over
(II) the
aggregate of the principal balances of the MT1-A1A, MT1-A1B, MT1-Z,
and
MT1-Y Interests after taking into account the distributions made
pursuant
to priorities (i) and (ii) above on such Distribution Date, (c)
the
principal balance of the MT2-Q Interest equals the excess of (I)
the
aggregate Class Principal Balance of the Class 2-A1A and Class
2-A1C
Certificates immediately after such Distribution Date over (II)
the
aggregate of the principal balances of the MT2-A1A, MT2-A1C, MT2-Z,
and
MT2-Y Interests after taking into account the distributions made
pursuant
to priorities (i) and (ii) above on such Distribution Date, and
(d) the
principal balance of the MTB-Q Interest equals the excess of (I)
the
aggregate Class Principal Balance of the Class B1, Class B2, Class
B3,
Class B4, Class B5, Class B6, Class B7, Class B-8, Class B-9, Class
B-10,
Class B-11, and Class B-12 Certificates immediately after such
Distribution Date over (b) the aggregate of the principal balances
of the
MT-B1, MT-B2, MT-B3, MT-B4, MT-B5, MT-B6, MT-B7, MT-B8, MT-B9,
MT-B10,
MT-B11, MT-B12, MTB-Z, and MTB-Y Interests after taking into account
the
distributions made pursuant to priorities (i) and (ii) above on
such
Distribution Date;
(iv)
Fourth,
remaining Available Funds shall be applied to interest distributions
on
the Middle-Tier Interests in the Middle-Tier REMIC at the interest
rates
described above, provided,
however,
that any Net Deferred Interest will be allocated among and increase
the
principal balances of the Middle-Tier Interests in the same order
of
priority in which principal is distributed among such Middle-Tier
Interests pursuant to priorities (i)(c), (ii), and (iii)
above.
On
any
Distribution Date, after all distributions of Available Funds, which shall
have
been distributed or allocated in respect of the Lower-Tier Interests in the
Lower-Tier REMIC, Realized Losses shall be allocated among the Middle-Tier
Interests in the same order of priority in which principal is distributed among
such Middle-Tier Interests pursuant to priorities (i) through (iii)
above.
The
Certificates
The
following table sets forth (or describes) the Class designation, Pass-Through
Rate, and Original Class Principal Balance (or Original Class Notional Balance)
for each Class of Certificates comprising interests in the Trust Fund created
hereunder. Each Class of Certificates, other than the Class A-R and Class A-R-II
Certificates, is hereby designated as representing ownership of regular
interests in the Upper-Tier REMIC.
6
Original
Class Principal
Balance
or Class Notional Balance
Pass-Through
Rate
Class
1-A1A
$
312,518,000.00
(1
)
Class
1-A1B
$
208,344,000.00
(1
)
Class
2-A1A
$
623,909,000.00
(1
)
Class
2-A1B
$
259,961,000.00
(1
)
Class
2-A1C
$
155,976,000.00
(1
)
Class
X-1
Notional
Amount (2
)
(1
)
Class
X-2A1B
Notional
Amount (3
)
(1
)
Class
PO-1
$
5,000.00
(4
)
(6
)
Class
PO-2A1B
$
100.00
(5
)
(6
)
Class
A-R
$
100.00
(10
)
(7
)
Class
B-1
$
34,878,000.00
(8
)
Class
B-2
$
24,413,000.00
(8
)
Class
B-3
$
14,822,000.00
(8
)
Class
B-4
$
13,950,000.00
(8
)
Class
B-5
$
12,207,000.00
(8
)
Class
B-6
$
11,335,000.00
(8
)
Class
B-7
$
9,591,000.00
(8
)
Class
B-8
$
8,719,000.00
(8
)
Class
B-9
$
7,847,000.00
(8
)
Class
B-10
$
13,950,000.00
(8
)
Class
B-11
$
17,438,000.00
(8
)
Class
B-12
$
13,950,730.00
(8
)
Class
A-R-II
(9
)
(9
)
(1)
Calculated
pursuant to the definition of “Pass-Through
Rate.”
(2)
For
purposes of the REMIC provisions, the Class X-1 Certificates shall
accrue
interest on a notional balance equal to the sum of the principal
balances
of the MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1C, MTB-1, MTB-2, MTB-3, MTB-4,
MTB-5, MTB-6. MTB-7, MTB-8, MTB-9, MTB-10, MTB-11, MTB-12, MT1-Q,
MT1-Y,
MT1-Z, MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and MTB-Z Interests. For
purposes of the REMIC Provisions, interest shall accrue on the Class
X-1
Certificate at a rate equal to the excess, if any, of (i) the weighted
average of the Group 1 Adjusted Net WAC and the Group 2 Adjusted
Net WAC,
weighted on the basis of the applicable Pool Balances for such
Distribution Date, over (ii) the Adjusted Middle-Tier WAC. The Class
X-1
Certificates are interest-only certificates and will not be entitled
to
distributions of principal.
(3)
For
purposes of the REMIC provisions, the Class X-2A1B Certificates shall
accrue interest on a notional balance equal to the sum of the principal
balances of the MT2-A1B, MT2-QAIB, MT2-YAIB, and MT2-ZAIB Interests.
For
purposes of the REMIC Provisions, interest shall accrue on the Class
X-2A1B Certificate at a rate equal to the excess, if any, of (i)
the Group
2-A1B Adjusted Net WAC over (ii) the Group 2-A1B Adjusted Middle-Tier
WAC.
7
(4)
The
Class PO-1 Certificates will be deemed for purposes of the distribution
of
principal to consist of two components: the PO-1A1 Component and
the
PO-1A2 Component. The Components are not severable. For purposes
of the
REMIC Provisions, the Class PO-1 Certificates shall accrue interest
on a
notional balance equal to the sum of the principal balances of the
MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1C, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5,
MTB-6. MTB-7, MTB-8, MTB-9, MTB-10, MTB-11, MTB-12, MT1-Q, MT1-Y,
MT1-Z,
MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and MTB-Z Interests. For purposes
of
the REMIC Provisions, interest shall accrue on the Class PO-1 Certificates
at a rate equal to the excess of (i) the weighted average of the
Group 1
Net WAC and the Group 2 Net WAC, weighted on the basis of the applicable
Pool Balances for such Distribution Date, over (ii) the Adjusted
Middle-Tier Pay Rate. Any interest accrued on the Class PO-1 Certificates
will not be paid currently but shall increase the Component Principal
Balance of the Class PO-1 Certificate. All amounts so accrued shall
be
deferred and distributed as principal in respect of the PO-1A1 and
PO-1A2
Components.
(5)
The
Class PO-2A1B Certificates are principal-only certificates and will
not be
entitled to distributions of interest. For purposes of the REMIC
Provisions, the Class PO-2A1B Certificates shall accrue interest
on a
notional balance equal to the sum of the principal balances of the
MT2-A1B, MT2-QAIB, MT2-YAIB, and MT2-ZAIB Interests. For purposes
of the
REMIC Provisions, interest shall accrue on the Class PO-2A1B Certificates
at a rate equal to the excess of (i) the Group 2 Net WAC over (ii)
the Group 2-A1B Adjusted Middle-Tier Pay Rate. Any interest accrued
on the Class PO-2A1B Certificates will not be paid currently but
shall
increase the Component Principal Balance of the Class PO-2A1B
Certificate.
(6)
The
Class PO-1 and Class PO-2A1B Certificates are principal-only certificates
and will not be entitled to distributions of
interest.
(7)
Calculated
pursuant to the definition of “Pass-Through
Rate.”
(8)
Calculated
pursuant to the definition of “Pass-Through Rate,” but adjusted, for
purposes of the REMIC Provisions, to reflect the allocation, if any,
of
Subordinate Class Expense Share.
(9)
For
purposes of the REMIC provisions, the Class A-R-II Certificate represents
ownership of the Class LT-R Interest, which is the sole class of
residual
interest in the Lower-Tier REMIC and does not have a principal balance
or
a pass-through rate.
(10)
For
purposes of the REMIC provisions, the Class A-R Certificate represents
ownership of (i) the Class MT-R Interest, which is the sole residual
interest in the Middle-Tier REMIC and (ii) the sole class of residual
interest in the Upper-Tier REMIC.
ARTICLE
I
DEFINITIONS;
DECLARATION OF TRUST
SECTION
1.01. Defined
Terms.
Whenever
used in this Agreement or in the Preliminary Statement, the following words
and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. All calculations of interest described herein shall
be made, in the case of the MTA Certificates, the Interest-Only Certificates
and
the Class A-R Certificates, and each of the Lower-Tier Interests and Middle-Tier
Interests, on the basis of an assumed 360-day year consisting of twelve 30-day
months, and in the case of LIBOR Certificates, on the basis of an assumed
360-day year and the actual number of days elapsed in the Accrual
Period.
8
“Acceptable
Successor Servicer”:
A
FHLMC- or FNMA-approved servicer that is (i) reasonably acceptable to the
Trustee and (ii) acceptable to each Rating Agency, as evidenced by a letter
from
each such Rating Agency delivered to the Trustee that such entity’s acting as a
successor servicer will not result in a qualification, withdrawal or downgrade
of the then-current rating of any of the Certificates (without regard to the
Financial Guaranty Insurance Policy).
“Account”:
The
Distribution Account or each Servicing Account, as the context
requires.
“Accrual
Period”:
With
respect to each Distribution Date and the MTA Certificates, the Interest-Only
Certificates and Class A-R Certificates, and any Lower-Tier Interests and
Middle-Tier Interests, the calendar month immediately preceding the month of
that Distribution Date. With respect to each Distribution Date and the LIBOR
Certificates, the period beginning on the immediately preceding Distribution
Date (or Closing Date in the case of the first Distribution Date) and ending
on
the date immediately preceding such Distribution Date. Interest on the LIBOR
Certificates shall be calculated on the basis of a 360-day year and the actual
number of days elapsed in the related Accrual Period; in the case of the other
Classes of Certificates (and the Pooling REMIC Interests, Lower-Tier Interests
and Middle-Tier Interests), interest shall be calculated based on an assumption
that each month has 30 days and each year has 360 days.
“Accrued
Interest Amount”:
With
respect to any Distribution Date and any Undercollateralized Group, an amount
equal to one month’s interest on the applicable Principal Deficiency Amount at
the Net WAC of the applicable Loan Group, plus any interest accrued on the
Senior Certificates of such Undercollateralized Group remaining unpaid from
prior Distribution Dates.
“Adjusted
Cap Rate”:
Any of
the Group 1 Adjusted Cap Rate, the Group 2 Adjusted Cap Rate, the Class X-1
Adjusted Cap Rate, the Class X-2A1B Adjusted Cap Rate or the Subordinate
Adjusted Cap Rate, as applicable.
“Adjusted
Middle-Tier Pay Rate”:
For
any Distribution Date (and the related Accrual Period), the product of (i)
2
multiplied
by
(ii) the
weighted average of the interest rates on the MT1-A1A, MT1-A1B, MT2-A1A,
MT2-A1C, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, MTB-6. MTB-7, MTB-8, MTB-9, MTB-10,
MTB-11, MTB-12, MT1-Q, MT1-Y, MT1-Z, MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and
MTB-Z Interests, weighted on the basis of their principal balances as of the
first day of the related Accrual Period and computed for this purpose by (a)
first subjecting the interest rate on the MT1-Q, MT1-Y, MT1-Z, MT2-Q, MT2-Y,
MT2-Z, MTB-Q, MTB-Y, and MTB-Z Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on the MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1C, MTB-1,
MTB-2, MTB-3, MTB-4, MTB-5, MTB-6. MTB-7, MTB-8, MTB-9, MTB-10, MTB-11, and
MTB-12 Interests to a cap equal to the product of the Pass-Through Rate for
the
Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and a floor equal to the weighted average of the Group 1 Adjusted Net WAC and
the Group 2 Adjusted Net WAC, weighted on the basis of the applicable Pool
Balances for such Distribution Date.
9
“Adjusted
Middle-Tier WAC”:
For
any Distribution Date (and the related Accrual Period), the product of (i)
2
multiplied
by
(ii) the
weighted average of the interest rates on the MT1-A1A, MT1-A1B, MT2-A1A,
MT2-A1C, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, MTB-6. MTB-7, MTB-8, MTB-9, MTB-10,
MTB-11, MTB-12, MT1-Q, MT1-Y, MT1-Z, MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and
MTB-Z Interests , weighted on the basis of their principal balances as of the
first day of the related Accrual Period and computed for this purpose by (a)
first subjecting the interest rate on each of the MT1-Q, MT1-Y, MT1-Z, MT2-Q,
MT2-Y, MT2-Z, MTB-Q, MTB-Y, and MTB-Z Interests to a cap of 0.00%, and (b)
first
subjecting the interest rate on each of the MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1C,
MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, MTB-6. MTB-7, MTB-8, MTB-9, MTB-10, MTB-11,
and MTB-12 Interests to a cap equal to the lesser of (I) the Pass-Through Rate
for the Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and (II) the weighted average of the Group 1 Adjusted Net WAC and the Group
2
Adjusted Net WAC, weighted on the basis of the applicable Pool Balances for
such
Distribution Date.
“Adjustment
Date”:
With
respect to each Mortgage Loan, each adjustment date on which the related Loan
Rate changes pursuant to the related Mortgage Note. The first Adjustment Date
following the applicable Cut-off Date as to each Mortgage Loan is set forth
in
the Mortgage Loan Schedule.
“Advance”:
With
respect to any Distribution Date and any Mortgage Loan or REO Property, any
advance made by the Servicer pursuant to Section 7.02.
“Adverse
REMIC Event”:
Either
(i) loss of status as a REMIC, within the meaning of Section 860D of the Code,
for any group of assets identified as a REMIC in the Preliminary Statement
to
this Agreement, or (ii) imposition of any tax, including the tax imposed under
Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section
860G(d) on certain contributions to a REMIC, on any REMIC created hereunder
to
the extent such tax would be payable from assets held as part of the Trust
Fund.
“Affiliate”:
With
respect to any Person, any other Person controlling, controlled by or under
common control with such Person. For purposes of this definition, “control”
means the power to direct the management and policies of a Person, directly
or
indirectly, whether through ownership of voting securities, by contract or
otherwise and “controlling” and “controlled” shall have meanings correlative to
the foregoing.
“Aggregate
Premium Amount”:
As to
any Distribution Date and the Insured Certificates, the product of one-twelfth
of the Premium Rate and the aggregate Class Principal Balance of the Class
1-A1B
and Class 2-A1C Certificates on the immediately preceding Distribution Date,
or,
in the case of the first Distribution Date, the Closing Date, in each case
after
giving effect to distributions of principal made on such Distribution
Date.
“Aggregate
Subordinate Percentage”:
As to
any Distribution Date, the percentage equivalent of a fraction the numerator
of
which is the aggregate of the Class Principal Balances of the Classes of
Subordinate Certificates and the denominator of which is the Pool Balance for
such Distribution Date.
10
“Agreement”:
This
Pooling Agreement, dated as of January 1, 2006, as amended, supplemented and
otherwise modified from time to time.
“Applicable
Credit Support Percentage”:
As
defined in Section 5.01(d).
“Apportioned
Principal Balance”:
As to
any Class of Subordinate Certificates, Loan Group and any Distribution Date,
the
Class Principal Balance of such Class immediately prior to such Distribution
Date multiplied
by
a
fraction, the numerator of which is the Subordinate Component for the related
Loan Group for such date and the denominator of which is the sum of the related
Subordinate Components (in the aggregate).
“Assignment”:
As to
any Mortgage, an assignment of mortgage, notice of transfer or equivalent
instrument, in recordable form, which is sufficient, under the laws of the
jurisdiction in which the related Mortgaged Property is located, to reflect
or
record the sale of such Mortgage.
“Available
Funds”:
As to
any Distribution Date and either Loan Group, an amount equal to (i) the sum
of (a) the aggregate of the Monthly Payments received on or prior to the
related Determination Date (excluding Monthly Payments due in future Due Periods
but received by the related Determination Date) in respect of the Mortgage
Loans
in that Loan Group, (b) Net Liquidation Proceeds, Insurance Proceeds,
Principal Prepayments, Recoveries and other unscheduled recoveries of principal
and interest in respect of the Mortgage Loans in that Loan Group received during
the related Prepayment Period, (c) the aggregate of any amounts received in
respect of REO Properties for such Distribution Date in respect of the Mortgage
Loans in that Loan Group, (d) the aggregate of any amounts of Interest
Shortfalls (excluding for such purpose all shortfalls as a result of Relief
Act
Reductions) paid by the Servicer pursuant to the Servicing Agreement and
Compensating Interest Payments deposited in the Distribution Account for that
Distribution Date in respect of the Mortgage Loans in that Loan Group,
(e) the aggregate of the Purchase Prices and Substitution Adjustments
deposited in the Distribution Account during the related Prepayment Period
in
respect of the Mortgage Loans in that Loan Group, (f) the aggregate of any
advances in respect of delinquent Monthly Payments made by the Servicer for
that
Distribution Date in respect of the Mortgage Loans in that Loan Group,
(g) the aggregate of any Advances made by the Trustee for that Distribution
Date pursuant to Section 7.02 hereof in respect of the Mortgage Loans in that
Loan Group and (h) the Termination Price allocated to such Loan Group on
the Distribution Date on which the Trust is terminated; minus
the sum
of (u) the related Premium Amount payable on such Distribution Date to the
Certificate Insurer from such Loan Group, (v) the Expense Fees for that
Distribution Date in respect of the Mortgage Loans in that Loan Group, (w)
amounts in reimbursement for Advances previously made in respect of the Mortgage
Loans in that Loan Group and other amounts as to which the Servicer, the Trustee
and the Custodian are entitled to be reimbursed pursuant to Section 4.03, (x)
the amount payable to the Trustee, pursuant to Section 8.05 and the Custodian
pursuant to Section 19 of the BONY Custodial Agreement in respect of the
Mortgage Loans in that Loan Group or if not related to a Mortgage Loan,
allocated to each Loan Group on a pro
rata
basis,
(y) amounts deposited in the Distribution Account in error in respect of the
Mortgage Loans in that Loan Group.
11
“Bankruptcy
Code”:
The
Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as
amended.
“Basis
Risk Reserve Fund”:
A fund
created as part of the Trust Fund pursuant to Section 5.07 of this Agreement
but
which is not an asset of any of the REMICs.
“Basis
Risk Reserve Fund X-1 Subaccount”:
A fund
created as part of the Trust Fund on behalf of the Class X-1 Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Basis
Risk Reserve Fund X-2A1B Subaccount”:
A fund
created as part of the Trust Fund on behalf of the Class X-2A1B Certificates
pursuant to Section 5.07 of this Agreement but which is not an asset of any
of
the REMICs.
“Basis
Risk Shortfall”:
With
respect to any Distribution Date and the MTA and LIBOR Certificates, the “Basis
Risk Shortfall” for such class, if any, will equal the sum of:
(i) the
excess, if any, of the Interest Distributable Amount that such Class would
have
been entitled to receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the actual
Interest Distributable Amount such Class is entitled to receive for such
Distribution Date;
(ii) any
excess described in clause (i) above remaining unpaid from prior Distribution
Dates; and
(iii) interest
for the applicable Accrual Period on the amount described in clause (ii)
above
based on the applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“BONY
Custodial Agreement”:
The
Custodial Agreement dated as of January 1, 2006, between the Trustee and the
Bank of New York, as custodian.
“Book-Entry
Certificates”:
Any of
the Certificates that shall be registered in the name of the Depository or
its
nominee, the ownership of which is reflected on the books of the Depository
or
on the books of a Person maintaining an account with the Depository (directly,
as a “Depository Participant”, or indirectly, as an indirect participant in
accordance with the rules of the Depository and as described in Section 6.02
hereof). On the Closing Date, all Classes of the Certificates other than the
Physical Certificates shall be Book-Entry Certificates.
“Business
Day”:
Any
day other than a Saturday, a Sunday or a day on which banking or savings
institutions in the State of California, Minnesota, Texas, New York or
Massachusetts or in the city in which the Corporate Trust Office of the Trustee
is located are authorized or obligated by law or executive order to be
closed.
“Call
Option”:
The
right to terminate this Agreement and the Trust pursuant to the second paragraph
of Section 10.01(a) hereof.
12
“Call
Option Date”:
As
defined in Section 10.01(a) hereof.
“Certificate”:
Any
Regular Certificate or Residual Certificate.
“Certificate
Insurer”:
Financial Security Assurance Inc., a New York financial guaranty insurance
company.
“Certificate
Insurer Default”:
The
existence and continuance of any of the following: (a) a failure by the
Certificate Insurer to make a payment required under the Financial Guaranty
Insurance Policy in accordance with its terms (unless such failure was due
to
the failure of the Trustee to provide a correct and timely notice of claim);
(b)
the entry of a final and non-appealable decree or order of a court or agency
having jurisdiction in respect of the Certificate Insurer in an involuntary
case
under any present or future federal or state bankruptcy, insolvency or similar
law appointing a conservator or receiver or liquidator or other similar official
of the Certificate Insurer or of any substantial part of its property, or the
entering of a final and non-appealable order for the winding up or liquidation
of the affairs of the Certificate Insurer; (c) the Certificate Insurer shall
consent to the appointment of a conservator or receiver or liquidator or other
similar official in any insolvency, readjustment of debt, marshaling of assets
and liabilities or similar proceedings of or relating to the Certificate Insurer
or of or relating to all or substantially all of its property; or (d) the
Certificate Insurer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of or otherwise
voluntarily commence a case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar statute, make an assignment for
the
benefit of its creditors, or voluntarily suspend payment of its
obligations.
“Certificate
Insurer Reimbursement Amount”:
For
any Distribution Date, the sum of (a) all amounts previously paid by the
Certificate Insurer in respect of Insured Amounts for which the Certificate
Insurer has not been reimbursed prior to such Distribution Date and (b) interest
accrued on the foregoing at the Late Payment Rate from the date the Trustee
received such amounts paid by the Certificate Insurer to such Distribution
Date.
“Certificate
Notional Balance”:
With
respect to each Certificate of a particular Class of Interest-Only Certificates
and any date of determination, the product of (i) the Class Notional Balance
of
such Class and (ii) the applicable Percentage Interest of such
Certificate.
“Certificate
Owner”:
With
respect to each Book-Entry Certificate, any beneficial owner thereof and with
respect to each Physical Certificate, the Certificateholder
thereof.
“Certificate
Principal Balance”:
With
respect to each Certificate of a particular Class (other than any Class of
Interest-Only Certificates and Class A-R-II) and any date of determination,
the
product of (i) the Class Principal Balance of such Class and (ii) the applicable
Percentage Interest of such Certificate.
“Certificate
Register”
and
“Certificate
Registrar”:
The
register maintained and registrar appointed pursuant to Section 6.02 hereof.
U.S. Bank National Association will act as Certificate Registrar, for so long
as
it is the Trustee under this Agreement.
13
“Certificateholder”
or
“Holder”:
The
Person in whose name a Certificate is registered in the Certificate Register,
except that a Disqualified Organization or non-U.S. Person shall not be a Holder
of a Residual Certificate for any purpose hereof.
“Class”:
Collectively, Certificates that have the same priority of payment and bear
the
same class designation and the form of which is identical except for variation
in the Percentage Interest evidenced thereby.
“Class
1-A1B Premium Amount”:
With
respect to any Distribution Date and the Class 1-A1B Certificates, the product
of one-twelfth of the Premium Rate and the Class Principal Balance of the Class
1-A1B Certificates on the immediately preceding Distribution Date, or, in the
case of the first Distribution Date, on the Closing Date, in each case after
giving effect to distributions of principal made on such Distribution
Date.
“Class
2-A1C Premium Amount”:
With
respect to any Distribution Date and the Class 2-A1C Certificates, the product
of one-twelfth of the Premium Rate and the Class Principal Balance of the Class
2-A1C Certificates on the immediately preceding Distribution Date, or, in the
case of the first Distribution Date, on the Closing Date, in each case after
giving effect to distributions of principal made on such Distribution
Date.
“Class
Notional Balance”:
With
respect to any Class of Interest-Only Certificates and any Distribution Date,
the Class X-1 Notional Balance or the Class X-2A1B Notional Balance, as
applicable.
“Class
Principal Balance”:
With
respect to any Class of Certificates (other than the Interest-Only Certificates,
Class PO-B and Class A-R-II Certificates) and any Distribution Date, the
Original Class Principal Balance as reduced by the sum of (x) all amounts
actually distributed in respect of principal of that Class on all prior
Distribution Dates (provided, however, that the Certificate Insurer will be
subrogated to the amount of any Realized Losses paid by it to the Insured
Certificates), (y) all Realized Losses, if any, actually allocated to that
Class
on all prior Distribution Dates and (z) in the case of the Subordinate
Certificates, any applicable Writedown Amount; provided,
however,
that
(i) pursuant to Section 5.02, the Class Principal Balance of a Class of
Certificates shall be increased up to the amount of Net Deferred Interest
allocated to such Class of Certificates on such Distribution Date and (ii)
pursuant to Section 5.08, the Class Principal Balance of a Class of Certificates
may be increased up to the amount of Realized Losses previously allocated to
such Class, in the event that there is a Recovery on a related Mortgage Loan,
and the Certificate Principal Balance of any individual Certificate of such
Class will be increased by its pro
rata
share of
the increase to such Class. With respect to the Class PO-1 Certificates, the
sum
of the Component Principal Balances of the Principal-Only Components as (a)
reduced by the sum of (x) all amounts actually distributed in respect of
principal of such Components on all prior Distribution Dates and (y) all
Realized Losses, if any, actually allocated to such Components on all prior
Distribution Dates; provided,
however,
that
(i) pursuant to Section 5.02, the Component Principal Balance of the PO-1A1
Component shall be increased up to the amount of Net Deferred Interest allocated
to the Class X-1 Certificates from Loan Group 1 and the Component Principal
Balance of the PO-1A2 Component shall be increased up to the amount of Net
Deferred Interest allocated to the Class X-1 Certificates from Loan Group 2,
in
each case based on the related Mortgage Loans on such Distribution Date and
(ii)
pursuant to Section 5.08, the Component Principal Balance of a Component may
be
increased up to the amount of Realized Losses previously allocated to such
Component, in the event that there is a Recovery on a related Mortgage
Loan.
14
“Class
LT-R Interest”:
As
described in the Preliminary Statement.
“Class
PO Certificate”:
Any
Class PO-1 or Class PO-2A1B Certificate.
“Class
Subordination Percentage”:
With
respect to each Class of Subordinate Certificates and any Distribution Date,
the
percentage equivalent of a fraction the numerator of which is the Class
Principal Balance of such Class immediately before such Distribution Date and
the denominator of which is the aggregate of the Class Principal Balances of
all
Classes of Certificates and Component Principal Balances immediately before
such
Distribution Date.
“Class
X-1 Adjusted Cap Rate”:
With respect to the Class X-1 Certificate for any Distribution Date, the
Pass-Through Rate for the Class X-1 Certificate, computed for this purpose
by
(i)
reducing the amount of interest accrued on the Mortgage Loans for the related
Due Period by the amount of any Net Deferred Interest for such Distribution
Date
and (ii) calculating the interest accrued on the Class 1-A1A, Class 1-A1B,
Class
2-A1A, Class 2-A1B, Class 2-A1C, and Class X-2A1B Certificates and the
Subordinate Certificates by substituting the related “Adjusted Cap Rate” for the
related “Net WAC Cap” in the definition of Pass-Through Rate for each such
Certificate.
“Class
X-1 Distributable Amount”:
With
respect to each Distribution Date, the sum of the Interest Distributable Amount
for such Distribution Date for the Class X-1 Certificates plus
all
Prepayment Penalty Amounts in respect of the Mortgage Loans received by the
Servicer for the related Prepayment Period.
“Class
X-1 Notional Balance”:
As of
any Distribution Date, the aggregate Class Principal Balance of the Class 1-A1A,
Class 1-A1B, Class 2-A1A, Class 2-A1C and Class PO-1 Certificates, and
Subordinate Certificates, at the end of the related Due Period.
“Class
X-1 Loan Group 1 Percentage”:
For
any Distribution Date and the Class X-1 Certificates, a percentage equivalent
to
the quotient of (i) the excess, if any, of (a) the interest accrued on the
Mortgage Loans in Loan Group 1 (net of Expense Fees and any Net Deferred
Interest for Loan Group 1 for such Distribution Date) for the related Due
period
over (b) the sum of interest accrued for the related Accrual Period on the
Class
1-A1A, Class 1-A1B, and Class A-R Certificates at the lesser of the applicable
Pass-Through Rate of the Adjusted Cap Rate and the Subordinate Component
for
Loan Group 1 (based on the weighted average of the lesser of Pass-Through
Rates
or Adjusted Cap Rates on each of the classes of Subordinate Certificates
for
such Distribution Date), divided by (ii) the Monthly Interest Distributable
Amount for the Class X-1 Certificates for such Distribution Date.
“Class
X-1 Loan Group 2 Percentage”:
For
any Distribution Date and the Class X-1 Certificates, a percentage equivalent
to
the quotient of (i) the excess, if any, of (a) the interest accrued on the
Mortgage Loans in Loan Group 2 (net of Expense Fees and any Net Deferred
Interest for Loan Group 2 for such Distribution Date) for the related Due
period
over (b) the sum of interest accrued for the related Accrual Period on the
Class
2-A1A, Class 2-A1B, Class 2-A1C and Class X-2A1B Certificates at the lesser
of
the applicable Pass-Through Rate of the Adjusted Cap Rate and the Subordinate
Component for Loan Group 2 (based on the weighted average of the lesser of
Pass-Through Rates or Adjusted Cap Rates on each of the classes of Subordinate
Certificates for such Distribution Date), divided by (ii) the Monthly Interest
Distributable Amount for the Class X-1 Certificates for such Distribution
Date.
“Class
X-2A1B Adjusted Cap Rate”:
With respect to the Class X-2A1B Certificate for any Distribution Date, the
Pass-Through Rate for the Class X-2A1B Certificate, computed for this purpose
by
reducing
the Group 2 Net WAC by a per annum rate equal to the quotient of (a) the Net
Deferred Interest of such Loan Group 2 for such Distribution Date multiplied
by
12,
divided
by
(b) the
Aggregate Principal Balance of the Loan Group 2 as of the first day of related
Due Period.
“Class
X-2A1B Notional Balance”:
As of
any Distribution Date, the aggregate Class Principal Balance of the Class 2-A1B
and Class PO-2A1B Certificates at the end of the related Due
Period.
“Close
of Business”:
As
used herein, with respect to any Business Day and location, 5:00 p.m. at such
location.
“Code”:
The
Internal Revenue Code of 1986, as amended.
“Commission”:
U.S.
Securities and Exchange Commission.
“Commitment
Letter”:
The
letter dated the Closing Date from the Seller and the Depositor to the
Certificate Insurer (a copy of which has been furnished to the Trustee) setting
forth the payment arrangements for the Aggregate Premium Amount on the Financial
Guaranty Insurance Policy and certain related expense payment
arrangements
“Compensating
Interest Payment”:
With
respect to any Distribution Date, the
amount specified to be paid by the Servicer pursuant to Section 11.04(ix) of
the
Servicing Addendum to the Servicing Agreement.
“Component”:
Any of
the PO-1 Components.
“Component
Principal Balance”:
As of
any date of determination, the PO-1A1 Component Principal Balance or PO-1A2
Component Principal Balance, as applicable, on such date.
“Cooperative
Corporation”:
The
entity that holds title (fee or an acceptable leasehold estate) to the real
property and improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation must qualify
as
a Cooperative Housing Corporation under Section 216 of the Code.
“Cooperative
Loan”:
Any
Mortgage Loan secured by Cooperative Shares and a Proprietary
Lease.
“Cooperative
Loan Documents”:
As to
any Cooperative Loan, (i) the Cooperative Shares, together with a stock power
in
blank; (ii) the original or a copy of the executed Security Agreement; (iii)
the
original or a copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original executed
Recognition Agreement and, if available, the original assignment of the
Recognition Agreement (or a blanket assignment of all Recognition Agreements)
endorsed in blank; (v) the executed UCC-1 financing statement with evidence
of
recording thereon, which has been filed in all places required to perfect the
security interest in the Cooperative Shares and the Proprietary Lease; and
(vi)
executed UCC amendments (or copies thereof) or other appropriate UCC financing
statements required by state law, evidencing a complete and unbroken line from
the mortgagee to the Trustee with evidence of recording thereon (or in a form
suitable for recordation).
“Cooperative
Property”:
The
real property and improvements owned by the Cooperative Corporation, that
includes the allocation of individual dwelling units to the holders of the
Cooperative Shares of the Cooperative Corporation.
“Cooperative
Shares”:
Shares
issued by a Cooperative Corporation.
“Cooperative
Unit”:
A
single family dwelling located in a Cooperative Property.
16
“Corporate
Trust Office”:
With
respect to the Trustee, the principal corporate trust office at which at any
particular time its corporate trust business in connection with this Agreement
shall be administered, which office at the date of the execution of this
instrument is located at One Federal Street, Boston, Massachusetts02110,
Attention: Corporate Trust, HarborView Mortgage Loan Trust 2006-1, or at such
other address as the Trustee may designate from time to time by notice to the
Certificateholders, the Depositor, and the Seller. With respect to the
Certificate Registrar and presentment of Certificates for registration of
transfer, exchange or final payment is located at 100 Wall Street,
15th
Floor,
New York, New York10004.
“Corresponding
Class”:
With
respect to each Middle-Tier Interest, the Class or Classes of Certificates
so
designated in the Preliminary Statement.
“Countrywide”:
Countrywide Home Loans, Inc., and its successors and assigns, in its capacity
as
Originator of the Mortgage Loans.
“Countrywide
Servicing”:
Countrywide Home Loans Servicing LP, as a servicer of the Mortgage Loans as
set
forth and as individually defined in the Mortgage Loan Schedule hereto and
any
successors thereto.
“Custodial
Fee”:
The
monthly fee payable to the Custodian for its services rendered under the BONY
Custodial Agreement calculated at the Custodial Fee Rate of the outstanding
Principal Balance of each Mortgage Loan as of the first day of the related
Due
Period.
“Custodial
Fee Rate”:
0.0016% per annum.
“Custodian”:
The
Bank of New York, and its successors acting as custodian of the Mortgage
Files.
“Cut-off
Date”:
With
respect to any Mortgage Loan, the Close of Business in New York City on January1, 2006.
“Cut-off
Date Collateral Balance”:
As to
any Distribution Date, the aggregate Stated Principal Balance of all Mortgage
Loans as of January 1, 2006.
“Cut-off
Date Principal Balance”:
With
respect to any Mortgage Loan, the principal balance thereof remaining to be
paid, after application of all scheduled principal payments due on or before
the
Cut-off Date whether or not received as of the Cut-off Date (or as of the
applicable date of substitution with respect to a Qualified Substitute Mortgage
Loan).
“Debt
Service Reduction”:
With
respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment
for
that Mortgage Loan by a court of competent jurisdiction in a proceeding under
the Bankruptcy Code, unless the reduction results from a Deficient
Valuation.
“Deferred
Interest”:
With
respect to each Mortgage Loan and each related Due Date, will be the excess,
if
any, of the amount of interest accrued on such Mortgage Loan from the preceding
Due Date to such due date over the portion of the Monthly Payment allocated
to
interest for such Due Date.
17
“Deficiency
Amount”:
Means
with respect to the Insured Certificates, (a) for any Distribution Date prior
to
the Final Distribution Date, the sum of (1) the excess, if any, of the Monthly
Interest Distributable Amount on the Insured Certificates for such Distribution
Date, net of any Net Interest Shortfalls, Basis Risk Shortfalls and Net Deferred
Interest, over the amount of Available Funds to pay such net amount on the
Insured Certificates on such Distribution Date and (2) the amount, if any,
of
any Realized Losses allocable to the Insured Certificates on such Distribution
Date (after giving effect to all distributions to be made thereon on such
Distribution Date, other than pursuant to a claim on the Policy) and (b) for
the
Final Distribution Date, the sum of (x) the amount set forth in clause (a)(1)
above and (y) the aggregate outstanding Certificate Principal Balance of the
Insured Certificates, after giving effect to all payments of principal on the
Insured Certificates on such Final Distribution Date, other than pursuant to
a
claim on the Financial Guaranty Insurance Policy on that Distribution Date.
Deficiency Amount shall not include (a) any portion of a Deficiency Amount
due
to holders of the Insured Certificates because a notice and certificate in
proper form as required by the Financial Guaranty Insurance Policy was not
timely received by the Certificate Insurer and (b) any portion of a Deficiency
Amount due to holders of the Insured Certificates representing interest on
any
unpaid interest accrued from and including the date of payment by the
Certificate Insurer of the amount of such unpaid interest.
“Deficient
Valuation”:
With
respect to any Mortgage Loan, a valuation of the related Mortgaged Property
by a
court of competent jurisdiction in an amount less than the then outstanding
principal balance of the Mortgage Loan, which valuation results from a
proceeding initiated under the Bankruptcy Code.
“Definitive
Certificates”:
Any
Certificate evidenced by a Physical Certificate and any Certificate issued
in
lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d)
hereof.
“Deleted
Mortgage Loan”:
A
Mortgage Loan replaced or to be replaced by one or more Qualified Substitute
Mortgage Loans.
“Delinquent”:
Any
Mortgage Loan with respect to which the Monthly Payment due on a Due Date is
not
made.
“Depositor”:
Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor
in
interest.
“Depository”:
The
initial Depository shall be The Depository Trust Company, whose nominee is
Cede
& Co., or any other organization registered as a “clearing agency” pursuant
to Section 17A of the Exchange Act. The Depository shall initially be the
registered Holder of the Book-Entry Certificates. The Depository shall at all
times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform
Commercial Code of the State of New York.
“Depository
Participant”:
A
broker, dealer, bank or other financial institution or other person for whom
from time to time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
18
“Determination
Date”:
For
any Distribution Date and each Mortgage Loan, the date each month, as set forth
in the Servicing Agreement, on which the Servicer determines the amount of
all
funds required to be remitted to the Trustee on the Servicer Remittance Date
with respect to the Mortgage Loans.
“Directly
Operate”:
With
respect to any REO Property, the furnishing or rendering of services to the
tenants thereof, the management or operation of such REO Property, the holding
of such REO Property primarily for sale to customers, the performance of any
construction work thereon or any use of such REO Property in a trade or business
conducted by any REMIC formed hereby other than through an Independent
Contractor; provided,
however,
that
the Trustee (or the Servicer on behalf of the Trustee) shall not be considered
to Directly Operate an REO Property solely because the Trustee (or the Servicer
on behalf of the Trustee) establishes rental terms, chooses tenants, enters
into
or renews leases, deals with taxes and insurance, or makes decisions as to
repairs or capital expenditures with respect to such REO Property.
“Disqualified
Organization”:
A
“disqualified organization” defined in Section 860E(e)(5) of the Code, or any
other Person so designated by the Trustee based upon an Opinion of Counsel
provided to the Trustee by nationally recognized counsel acceptable to the
Trustee that the holding of an ownership interest in a Residual Certificate
by
such Person may cause the Trust Fund or any Person having an ownership interest
in any Class of Certificates (other than such Person) to incur liability for
any
federal tax imposed under the Code that would not otherwise be imposed but
for
the transfer of an ownership interest in the Residual Certificate to such
Person.
“Distribution
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant to
Section 4.02 hereof for the benefit of the Certificate Insurer and the
Certificateholders and designated “Distribution Account, U.S. Bank National
Association, as Trustee, in trust for the registered Certificateholders of
HarborView Mortgage Loan Trust 2006-1, Mortgage Loan Pass-Through Certificates,
Series 2006-1” and which must be an Eligible Account.
“Distribution
Account Income”:
As to
any Distribution Date, any interest or other investment income earned on funds
deposited in the Distribution Account during the month of such Distribution
Date.
“Distribution
Date”:
The
19th
day of
each month, or, if such day is not a Business Day, the next Business Day,
commencing in February 2006.
“Distribution
Date Statement”:
As
defined in Section 5.04(a) hereof.
“Due
Date”:
With
respect to each Mortgage Loan and any Distribution Date, the first day of the
calendar month in which that Distribution Date occurs on which the Monthly
Payment for such Mortgage Loan was due, exclusive of any days of
grace.
“Due
Period”:
With
respect to any Distribution Date, the period commencing on the second day of
the
month preceding the month in which that Distribution Date occurs and ending
on
the first day of the month in which that Distribution Date occurs.
19
“Eligible
Account”:
Any of
(i)
an
account or accounts maintained with a federal or state chartered depository
institution or trust company the short-term unsecured debt obligations of which
(or, in the case of a depository institution or trust company that is the
principal subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short term rating
category of the Rating Agencies at the time any amounts are held on deposit
therein;
(ii) an
account or accounts the deposits in which are fully insured by the FDIC (to
the
limits established by it), the uninsured deposits in which account are otherwise
secured such that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders will have a claim
with
respect to the funds in the account or a perfected first priority security
interest against the collateral (which shall be limited to Permitted
Investments) securing those funds that is superior to claims of any other
depositors or creditors of the depository institution with which such account
is
maintained;
(iii) a
trust
account or accounts maintained with the trust department of a federal or state
chartered depository institution, national banking association or trust company
acting in its fiduciary capacity; or
(iv) an
account otherwise acceptable to each Rating Agency without reduction or
withdrawal of its then current ratings of the Certificates as evidenced by
a
letter from each Rating Agency to the Trustee. Eligible Accounts may bear
interest.
“Endorsement”:
As
defined in the Financial Guaranty Insurance Policy.
“ERISA”:
The
Employee Retirement Income Security Act of 1974, as amended.
“ERISA-Restricted
Certificates”:
(i)
the Class 1-A1B Certificates, the Subordinate Certificates and the Residual
Certificates, (ii) any Class 1-A1A, Class PO-1 or Class X-1 Certificates that
are not rated at least “AA-” (or its equivalent) by at least one nationally
rated statistical rating organization (“Rating Agency”) upon acquisition, (iii)
any Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-2A1B or Class PO-2A1B
Certificates that are not rated at least “BBB-” by at least one Rating Agency
upon acquisition or (iv) in general, any Certificate that does not satisfy
the
applicable rating requirement under the Underwriter's Exemption.
“ERISA-Qualifying
Underwriting”:
A best
efforts or firm commitment underwriting or private placement that meets the
requirements of an Underwriter’s Exemption.
“Event
of Default”:
As
defined in the Servicing Agreement.
“Exchange
Act”:
The
Securities Exchange Act of 1934, as amended.
20
“Expense
Fee”
With
respect to any Mortgage Loan, the sum of (i) the Servicing Fee, (ii) the Trustee
Fee, (iii) with respect to any Lender-Paid Mortgage Insurance Loan, the
Lender-Paid Mortgage Insurance Fee and (iv) the Custodial Fee.
“Fannie
Mae”:
The
Federal National Mortgage Association or any successor thereto.
“FDIC”:
The
Federal Deposit Insurance Corporation or any successor thereto.
“Final
Distribution Date”:
With
respect to the Certificates other than the Insured Certificates, the
Distribution Date occurring in March 2036. With respect to the Insured
Certificates, the Distribution Date occurring in March 2037.
“Final
Recovery Determination”:
With
respect to any defaulted Mortgage Loan or any REO Property (other than a
Mortgage Loan or REO Property purchased by the Seller pursuant to or as
contemplated by Sections 2.03 and 10.01), a determination made by the Servicer,
and reported to the Trustee, that all Insurance Proceeds, Liquidation Proceeds
and other payments or recoveries which the Servicer expects to be finally
recoverable in respect thereof have been so recovered.
“Financial
Guaranty Insurance Policy”:
The
Financial Guaranty Insurance Policy (No. 51713-N)
with
respect to the Insured Certificates, and all endorsements thereto dated the
Closing Date, issued by the Certificate Insurer for the benefit of the Holders
of the Insured Certificates, a copy of which is attached hereto as Exhibit
O.
“Freddie
Mac”:
The
Federal Home Loan Mortgage Corporation or any successor thereto.
“GCFP”:
Greenwich Capital Financial Products, Inc., and its successors and
assigns.
“Gross
Margin”:
With
respect to each Mortgage Loan, the fixed percentage set forth in the related
Mortgage Note that is added to the applicable Index on each Adjustment Date
in
accordance with the terms of the related Mortgage Note used to determine the
Loan Rate for such Mortgage Loan.
“Group
1 Adjusted Cap Rate”:
For any
Distribution Date and the Class 1-A1A and Class 1-A1B Certificates, the Group
1
Net WAC Cap for that Distribution Date, computed for this purpose by first
reducing the Group 1 Net WAC by a per annum rate equal to the quotient of (i)
the product of (a) the Net Deferred Interest, if any, on the Group 1 Mortgage
Loans for that Distribution Date multiplied
by
(b) 12,
divided
by
(ii) the
Pool Collateral Balance for Loan Group 1 as of the first day of the related
Due
Period (or in the case of the first Distribution Date, as of the Cut-off
Date).
“Group
1 Adjusted Net WAC”:
For
any Distribution Date, the excess of (i) the Group 1 Net WAC for such
Distribution Date over (ii) the quotient of (a) the product of (I) the Net
Deferred Interest for Loan Group 1 for such Distribution Date multiplied
by
(II) 12,
divided
by
(b) the
Pool Collateral Balance for Loan Group 1 for such Distribution Date.
21
“Group
1 Mortgage Loan”:
Each
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
1 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Group 1 Mortgage Loans as of the first day of the related Due Period (or,
in
the case of the first Distribution Date, as of the Cut-off Date), weighted
on
the basis of the related Stated Principal Balances at the beginning of the
related Due Period.
“Group
1 Net WAC Cap”:
For
any Distribution Date and the Class 1-A1A Certificates, the product of (i)
the
Group 1 Net WAC multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period. For any Distribution Date and
the
Class 1-A1B Certificates, (a) the product of (i) the Group 1 Net WAC
multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period less
(b) the
related insurance premium rate for such Distribution Date.
For
the
Class 1-A1B Certificates and the related Group 1 Net WAC Cap and Pass-Through
Rate, the per annum “insurance premium rate” for any Distribution Date is the
product of (i)(a) the Premium Amount for the Class 1-A1B Certificates for such
Distribution Date, divided
by
(b) the
Class Principal Balance of such Class immediately prior to such Distribution
Date, multiplied
by
(ii) the
quotient obtained by dividing 360 by the actual number of days in the related
Accrual Period for such Class.
“Group
2 Adjusted Cap Rate”:
For
any Distribution Date and the Class 2-A1A, Class 2-A1B and Class 2-A1C
Certificates, the Group 2 Net WAC Cap for that Distribution Date, computed
for
this purpose by first reducing the Group 2 Net WAC by a per annum rate equal
to
the quotient of (i) the product of (a) the Net Deferred Interest, if any, on
the
Group 2 Mortgage Loans for the Distribution Date multiplied
by
(b) 12,
divided
by
(ii) the
aggregate Pool Collateral Balance for Loan Group 2 as of the first day of the
related Due Period (or in the case of the first Distribution Date, as of the
Cut-off Date).
“Group
2-A1B Adjusted Middle-Tier Pay Rate”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied
by
(ii) the
weighted average of the interest rates on the MT2-A1B,
MT2-QAIB, MT2-YAIB and MT2-ZAIB Interests, weighted on the basis of their
principal balances as of the first day of the related Accrual Period and
computed for this purpose by (a) first subjecting the interest rates on each
of
the MT2-QAIB, MT2-YAIB and MT2-ZAIB Interests to a cap of 0.00%, and (b) first
subjecting the interest rate on the MT2-A1B Interest to a cap equal to the
Pass-Through Rate for their Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and a floor equal to the Group 2 Adjusted Net WAC.
“Group
2-A1B Adjusted Middle-Tier WAC”:
For any
Distribution Date (and the related Accrual Period), the product of (i) 2
multiplied
by
(ii) the
weighted average of the interest rates on the MT2-A1B, MT2-QAIB, MT2-YAIB and
MT2-ZAIB Interests, weighted on the basis of their principal balances as of
the
first day of the related Accrual Period and computed for this purpose by (a)
first subjecting the interest rate on each of the MT2-QAIB, MT2-YAIB and
MT2-ZAIB Interests to a cap of 0.00%, and (b) first subjecting the interest
rate
on the MT2-A1B Interest to a cap equal to the lesser of (I) the Pass-Through
Rate for the Corresponding Class of Certificates multiplied
by
the
quotient of (A) the actual number of days in the Accrual Period for the
Corresponding Class of Certificates divided
by
(B) 30
and (II) the Group 2 Adjusted Net WAC.
22
“Group
2 Adjusted Net WAC”:
For
any Distribution Date, the excess of (i) the Group 2 Net WAC for such
Distribution Date over (ii) the quotient of (a) the product of (I) the Net
Deferred Interest for Loan Group 2 for such Distribution Date multiplied
by
(II) 12,
divided
by
(b) the
Pool Collateral Balance for Loan Group 2 for such Distribution
Date.
“Group
2 Mortgage Loan”:
Each
Mortgage Loan that is identified as such on the Mortgage Loan
Schedule.
“Group
2 Net WAC”:
With
respect to any Distribution Date, the weighted average of the Net Loan Rates
of
the Group 2 Mortgage Loans as of the first day of the related Due Period (or,
in
the case of the first Distribution Date, as of the Cut-off Date), weighted
on
the basis of the related Stated Principal Balances at the beginning of the
related Due Period.
For
the
Class 2-A1C Certificates and the related Group 2 Net WAC Cap and Pass-Through
Rate, the per annum “insurance premium rate” for any Distribution Date is the
product of (i)(a) the Premium Amount for the Class 2-A1C Certificates for such
Distribution Date, divided
by
(b) the
Class Principal Balance of such Class immediately prior to such Distribution
Date, multiplied
by
(ii) the
quotient obtained by dividing 360 by the actual number of days in the related
Accrual Period for such Class.
“Group
2 Net WAC Cap”:
For
any Distribution Date and the Class 2-A1A Certificates, the product of (i)
the
Group 2 Net WAC multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period. For any Distribution Date and
the
Class 2-A1B Certificates, the Group 2 Net WAC. For any Distribution Date and
the
Class 2-A1C Certificates, (a) the product of (i) the Group 2 Net WAC
multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period less
(b) the
related insurance premium rate for such Distribution Date.
“Indemnification
Agreement”:
The
Indemnification Agreement dated as of the Closing Date among the Depositor,
the
Seller, Greenwich Capital Markets, Inc. and the Certificate Insurer, including
any amendments and supplements thereto.
“Indemnified
Parties”:
The
Trustee, the Depositor, the Custodian and the Certificate Insurer and their
respective officers, directors, agents and employees and, with respect to the
Trustee, any separate co-trustee and its officers, directors, agents and
employees.
“Independent”:
When
used with respect to any specified Person, any such Person who (a) is in fact
independent of the Depositor and its Affiliates, (b) does not have any direct
financial interest in or any material indirect financial interest in the
Depositor or any Affiliate thereof, and (c) is not connected with the Depositor
or any Affiliate thereof as an officer, employee, promoter, underwriter,
trustee, partner, director or Person performing similar functions; provided,
however,
that a
Person shall not fail to be Independent of the Depositor or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or less of
any
class of securities issued by the Depositor or any Affiliate
thereof.
23
“Independent
Contractor”:
Either
(i) any Person that would be an “independent contractor” with respect to any
REMIC formed hereby within the meaning of Section 856(d)(3) of the Code if
such
REMIC were a real estate investment trust (except that the ownership tests
set
forth in that section shall be considered to be met by any Person that owns,
directly or indirectly, 35% or more of any Class of Certificates), so long
as no
REMIC formed hereby receives or derives any income from such Person and provided
that the relationship between such Person and the applicable REMIC is at arm’s
length, all within the meaning of Treasury Regulation Section 1.856-4(b)(5),
or
(ii) any other Person if the Trustee has received an Opinion of Counsel to
the
effect that the taking of any action in respect of any REO Property by such
Person, subject to any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not cause such REO
Property to cease to qualify as “foreclosure property” within the meaning of
Section 860G(a)(8) of the Code (determined without regard to the exception
applicable for purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as Rents from Real
Property.
“Index”:
With
respect to each Mortgage Loan and each Adjustment Date, the index specified
in
the related Mortgage Note.
“Initial
Certificate Principal Balance”:
With
respect to any Certificate other than the Interest-Only Certificates and Class
A-R-II Certificates, the amount designated “Initial Certificate Principal
Balance” on the face thereof.
“Initial
Certificate Notional Balance”:
With
respect to any Interest-Only Certificate, the amount designated “Initial
Certificate Notional Balance” on the face thereof.
“Insurance
Proceeds”:
With
respect to any Mortgage Loan, proceeds of any title policy, hazard policy or
other insurance policy covering a Mortgage Loan, to the extent such proceeds
are
not to be applied to the restoration of the related Mortgaged Property or
released to the related Mortgagor in accordance with the Servicing
Agreement.
“Insured
Amount”:
The
meaning assigned to the term “Guaranteed Distributions” in the Financial
Guaranty Insurance Policy.
“Insured
Certificate”:
Any
Class 1-A1B or Class 2-A1C Certificate.
“Interest
Distributable Amount”:
With
respect to any Distribution Date and each Class of Certificates (other than
the
Class PO Certificates and Class A-R-II Certificates), the sum of (i) the
Monthly Interest Distributable Amount for that Class and (ii) the Unpaid
Interest Shortfall Amount for that Class.
“Interest-Only
Certificate”:
Any
Class X-1 or Class X-2A1B Certificate.
24
“Interest
Shortfall”:
With
respect to any Distribution Date and each Mortgage Loan that during the related
Prepayment Period was the subject of a Principal Prepayment or a reduction
of
its Monthly Payment under the Relief Act, an amount determined as
follows:
(a)Principal
Prepayments in part received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate for
such Mortgage Loan on the amount of such prepayment and (ii) the amount of
interest for the calendar month of such prepayment (adjusted to the applicable
Net Loan Rate) actually received with respect to such prepayment at the time
of
such prepayment; and
(b)Principal
Prepayments in full received during the relevant Prepayment
Period:
the
difference between (i) one month’s interest at the applicable Net Loan Rate on
the Stated Principal Balance of such Mortgage Loan immediately prior to such
prepayment and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) actually received with
respect to such prepayment at the time of such prepayment; and
(c) the
amount of any Relief Act Reductions for such Distribution Date.
“Late
Payment Rate”:
For
any Distribution Date, the lesser of (i) the greater of (a) the rate of
interest, as it is publicly announced by Citibank, N.A. at its principal office
in New York, New York as its prime rate (any change in such prime rate of
interest to be effective on the date such change is announced by Citibank,
N.A.)
plus
3% and (b) the then applicable highest rate of interest on the Insured
Certificates and (ii) the maximum rate permissible under applicable usury or
similar laws limiting interest rates. The Late Payment Rate shall be
computed on the basis of the actual number of days elapsed over a year of 360
days.
“Latest
Possible Maturity Date”:
As
determined as of the Cut-off Date, the Distribution Date following the third
anniversary of the scheduled maturity date of the Mortgage Loan having the
latest scheduled maturity date as of the Cut-off Date.
“Lender-Paid
Mortgage Insurance Loan”:
Each
Mortgage Loan identified as such in the Mortgage Loan Schedule.
“Lender-Paid
Mortgage Insurance Fee”:
As to
any Distribution Date and each Lender Paid Mortgage Insurance Mortgage Loan,
an
amount equal to the product of the Lender-Paid Mortgage Insurance Fee Rate
and
the outstanding Principal Balance of such Mortgage Loan as of the first day
of
the related Due Period.
“Lender-Paid
Mortgage Insurance Fee Rate”:
For
each Lender-Paid Mortgage Insurance Loan and any Distribution Date, the per
annum rate required to be paid in connection with the related lender-paid
mortgage insurance policy for such Mortgage Loan on such Distribution
Date.
“LIBOR”:
With
respect to each Accrual Period, a per annum rate determined on the LIBOR
Determination Date in the following manner by the Trustee on the basis of the
“Interest Settlement Rate” set by the BBA for one-month United States dollar
deposits, as such rates appear on the Telerate Page 3750, as of 11:00 a.m.
(London time) on the related LIBOR Determination Date.
25
(a) If
on
such a LIBOR Determination Date, the BBA’s Interest Settlement Rate does not
appear on the Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Trustee will obtain such
rate from Reuters’ “page LIBOR 01” or Bloomberg’s page “BBAM.” If such rate is
not published for such LIBOR Determination Date, LIBOR for such date will be
the
most recently published Interest Settlement Rate. In the event that the BBA
no
longer sets an Interest Settlement Rate, the rate for such date will be
determined on the basis of the rates at which one-month U.S. dollar deposits
are
offered by the Reference Banks at approximately 11:00 am (London time) on such
date to prime banks in the London interbank market. In such event, the Trustee
will request the principal London office of each of the Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of the quotations (rounded
upwards if necessary to the nearest whole multiple of 1/16%). If fewer than
two
quotations are provided as requested, the rate for that date will be the
arithmetic mean of the rates quoted by major banks in New York City, selected
by
the Trustee (after consultation with the Depositor), at approximately 11:00
a.m.
(New York City time) on such date for one-month U.S. dollar loan to leading
European banks.
(b) The
establishment of LIBOR by the Trustee and the Trustee’s subsequent calculation
of the Pass-Through Rate applicable to the LIBOR Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and
binding.
“LIBOR
Business Day”:
Any
day on which banks in London, England and The City of New York are open and
conducting transactions in foreign currency and exchange.
“LIBOR
Certificates”:
The
Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1C, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class
B-8, Class B-9, Class B-10, Class B-11 and Class B-12 Certificates.
“LIBOR
Determination Date”:
The
second LIBOR Business Day immediately preceding the commencement of each Accrual
Period for the LIBOR Certificates.
“Liquidated
Mortgage Loan”:
As to
any Distribution Date, any Mortgage Loan in respect of which the Servicer has
determined, in accordance with the servicing procedures specified herein, as
of
the end of the related Prepayment Period, that all Liquidation Proceeds that
it
expects to recover with respect to the liquidation of such Mortgage Loan or
disposition of the related REO Property have been recovered.
“Liquidation
Event”:
With
respect to any Mortgage Loan, any of the following events: (i) such Mortgage
Loan is paid in full; (ii) a Final Recovery Determination is made as to such
Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by
reason of its being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the following events:
(i)
a Final Recovery Determination is made as to such REO Property; or (ii) such
REO
Property is removed from the Trust Fund by reason of its being sold or purchased
pursuant to Section 10.01 hereof or the applicable provisions of the Servicing
Agreement.
26
“Liquidation
Expenses”:
With
respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or
incurred by or for the account of the Servicer such expenses including (a)
property protection expenses, (b) property sales expenses, (c) foreclosure
and
sale costs, including court costs and reasonable attorneys’ fees, and (d)
similar expenses reasonably paid or incurred in connection with
liquidation.
“Liquidation
Proceeds”:
With
respect to any Mortgage Loan, the amount (other than amounts received in respect
of the rental of any REO Property prior to REO Disposition) received by the
Servicer as proceeds from the liquidation of such Mortgage Loan, as determined
in accordance with the applicable provisions of the Servicing Agreement, other
than Recoveries; provided
that
with respect to any Mortgage Loan or REO Property repurchased, substituted
or
sold pursuant to or as contemplated hereunder, or pursuant to the applicable
provisions of the Servicing Agreement, “Liquidation Proceeds” shall also include
amounts realized in connection with such repurchase, substitution or
sale.
“Loan
Group”:
Either
Loan Group 1 or Loan Group 2, as the context requires.
“Loan
Group Balance”:
As to
each Loan Group, the aggregate of the Stated Principal Balances of the Mortgage
Loans in such Loan Group that were Outstanding Mortgage Loans at the time of
determination.
“Loan
Group Collateral Balance”:
With
respect to each Loan Group and any date of determination, the applicable Loan
Group Balance.
“Loan
Group 1”:
At any
time, the Group 1 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Group 2”:
At any
time, the Group 2 Mortgage Loans in the aggregate and any REO Properties
acquired in respect thereof.
“Loan
Rate”:
With
respect to each Mortgage Loan, the annual rate at which interest accrues on
such
Mortgage Loan from time to time in accordance with the provisions of the related
Mortgage Note.
“Loan-to-Value
Ratio”:
With
respect to each Mortgage Loan and any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Principal Balance
of
the Mortgage Loan at such date of determination and the denominator of which
is
the Value of the related Mortgaged Property.
“Lost
Note Affidavit”:
With
respect to any Mortgage Loan as to which the original Mortgage Note has been
permanently lost or destroyed and has not been replaced, an affidavit from
the
Seller certifying that the original Mortgage Note has been lost, misplaced
or
destroyed (together with a copy of the related Mortgage Note and indemnifying
the Trust against any loss, cost or liability resulting from the failure to
deliver the original Mortgage Note) in the form of Exhibit H
hereto.
27
“Lower-Tier
Interest”:
Any
one of the interests in the Lower-Tier REMIC, as described in the Preliminary
Statement.
“Lower-Tier
REMIC”:
As
described in the Preliminary Statement.
“Majority
Certificateholders”:
The
Holders of Certificates evidencing at least 51% of the Voting
Rights.
“Margin”:
On
each Distribution Date on or prior to the Call Option Date, (i) with respect
to
the Class 1-A1A Certificates, 0.260% per annum, and on each Distribution Date
after the Call Option Date, 0.520% per annum, (ii) with respect to the Class
1-A1B Certificates, 0.260% per annum, and on each Distribution Date after the
Call Option Date, 0.520% per annum, (iii) with respect to the Class 2-A1A
Certificates, 0.240% per annum, and on each Distribution Date after the Call
Option Date, 0.480% per annum, (iv) with respect to the Class 2-A1B
Certificates, 1.560% per annum, and on each Distribution Date after the Call
Option Date, 3.120% per annum, (v) with respect to the Class 2-A1C Certificates,
0.240% per annum, and on each Distribution Date after the Call Option Date,
0.480% per annum, (vi) with respect to the Class B-1 Certificates, 0.600% per
annum, and on each Distribution Date after the Call Option Date, 0.900% per
annum, (vii) with respect to the Class B-2 Certificates, 0.630% per annum,
and
on each Distribution Date after the Call Option Date, 0.945% per annum, (viii)
with respect to the Class B-3 Certificates, 0.660% per annum, and on each
Distribution Date after the Call Option Date, 0.990% per annum, (ix) with
respect to the Class B-4 Certificates, 1.000% per annum, and on each
Distribution Date after the Call Option Date, 1.500% per annum, (x) with respect
to the Class B-5 Certificates, 1.100% per annum, and on each Distribution Date
after the Call Option Date, 1.650% per annum, (xi) with respect to the Class
B-6
Certificates, 1.300% per annum, and on each Distribution Date after the Call
Option Date, 1.950% per annum and (xii) with respect to the Class B-7, Class
B-8, Class B-9, Class B-10, Class B-11 and Class B-12 Certificates, 1.750%
per
annum, and on each Distribution Date after the Call Option Date, 2.625% per
annum.
“Maximum
Loan Rate”:
With
respect to each Mortgage Loan, the percentage set forth in the related Mortgage
Note as the maximum Loan Rate thereunder.
“MERS”:
Mortgage Electronic Registration Systems, Inc., a corporation organized and
existing under the laws of the State of Delaware, or any successor
thereto.
“MERS
Mortgage Loan”:
Any
Mortgage Loan registered with MERS on the MERS System.
“MERS(R)System”:
The
system of recording transfers of mortgages electronically maintained by
MERS.
“Middle-Tier
Interest”:
Any one
of the interests in the Middle-Tier REMIC, as described in the Preliminary
Statement.
28
“Middle-Tier
REMIC”:
As
described in the Preliminary Statement.
“MIN”:
The
Mortgage Identification Number for any MERS Mortgage Loan.
“MOM
Loan”:
Any
Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for
the
originator of such Mortgage Loan and its successors and assigns.
“Monthly
Interest Distributable Amount”:
With
respect to each Class of Certificates (other than the Class PO Certificates
and
Class A-R-II Certificates) and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the lesser of the related Adjusted
Cap Rate and the related Pass-Through Rate on the Class Principal Balance or
Class Notional Balance, as applicable, immediately prior to that Distribution
Date; provided,
however,
that
for purposes of compliance with the REMIC Provisions, (A) the Monthly Interest
Distributable Amount for each Class of Subordinate Certificates shall be
calculated by reducing the related Pass-Through Rate by a per annum rate equal
to (i) 12 times the Subordinate Class Expense Share for such Class divided
by
(ii) the
Class Principal Balance of such Class as of the beginning of the related Accrual
Period and (B) such Class shall be deemed to bear interest at such Pass-Through
Rate as so reduced for federal income tax purposes; provided,
further,
such
Monthly Interest Distributable Amount shall be reduced if the Pass-Through
Rate
applicable to such Class for the related Accrual Period exceeds the Adjusted
Cap
Rate applicable to such Class for such Distribution Date, subject to the
allocation priority set forth in Section 5.02 herein.
“Monthly
Payment”:
With
respect to any Mortgage Loan, the scheduled monthly payment of principal and
interest on such Mortgage Loan that is payable by the related Mortgagor from
time to time under the related Mortgage Note, determined, for the purposes
of
this Agreement: (a) after giving effect to any reduction in the amount of
interest collectible from the related Mortgagor pursuant to the Relief Act;
(b)
without giving effect to any extension granted or agreed to by the Servicer
pursuant to the applicable provisions of the Servicing Agreement; and (c) on
the
assumption that all other amounts, if any, due under such Mortgage Loan are
paid
when due.
“Moody’s”:
Moody’s Investors Service, Inc. and its successors.
“Mortgage”:
The
mortgage, deed of trust or other instrument creating a first lien on, or first
priority security interest in, a Mortgaged Property securing a Mortgage
Note.
“Mortgage
File”:
The
mortgage documents listed in Section 2.01 hereof pertaining to a particular
Mortgage Loan and any additional documents required to be added to the Mortgage
File pursuant to this Agreement.
“Mortgage
Loan”:
Each
mortgage loan (including Cooperative Loans) transferred and assigned to the
Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to
time
held as a part of the Trust Fund, the Mortgage Loans so held being identified
in
the Mortgage Loan Schedule.
“Mortgage
Loan Purchase Agreement”:
The
Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated
as
of January 1, 2006, regarding the transfer of the Mortgage Loans by the Seller
(including the Seller’s rights and interests in the Servicing Agreement) to or
at the direction of the Depositor.
29
“Mortgage
Loan Schedule”:
As of
any date, the list of Mortgage Loans included in the Trust Fund on such date,
attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared
by
the Seller and shall set forth the following information with respect to each
Mortgage Loan:
(i)
the
Mortgage Loan identifying number;
(ii)
a
code indicating whether the Mortgaged Property was represented by
the
borrower, at the time of origination, as being
owner-occupied;
(iii)
a
code indicating whether the Residential Dwelling constituting the
Mortgaged Property is (a) a detached single family dwelling, (b)
a
dwelling in a planned unit development, (c) a condominium unit, (d)
a two-
to four-unit residential property, (e) a townhouse or (f) other type
of
Residential Dwelling;
(iv)
if
the related Mortgage Note permits the borrower to make Monthly Payments
of
interest only for a specified period of time, (a) the original number
of
such specified Monthly Payments and (b) the remaining number of such
Monthly Payments as of the Cut-off
Date;
(v)
the
original months to maturity;
(vi)
the
stated remaining months to maturity from the Cut-off Date based on
the
original amortization schedule;
(vii)
the
Loan-to-Value Ratio at origination;
(viii)
the
Loan Rate in effect immediately following the Cut-off
Date;
(ix)
the
date on which the first Monthly Payment is or was due on the Mortgage
Loan;
(x)
the
stated maturity date;
(xi)
the
Servicing Fee Rate, if any;
(xii)
the
last Due Date on which a Monthly Payment was actually applied to
the
unpaid Stated Principal Balance;
(xiii)
the
original principal balance of the Mortgage
Loan;
(xiv)
the
Stated Principal Balance of the Mortgage Loan on the Cut-off Date,
and a
code indicating the purpose of the Mortgage Loan (i.e.,
purchase financing, rate/term refinancing, cash-out
refinancing);
30
(xv)
the
Index and Gross Margin specified in related Mortgage
Note;
(xvi)
the
next Adjustment Date, if
applicable;
(xvii)
the
Maximum Loan Rate, if applicable;
(xviii)
the
Value of the Mortgaged Property;
(xix)
the
sale price of the Mortgaged Property, if
applicable;
(xx)
the
product code;
(xxi)
whether
the Mortgage Loan is a Lender-Paid Mortgage Insurance
Loan;
(xxii)
the
Servicer that is servicing each Mortgage Loan and the Originator
of each
Mortgage Loan;
(xxiii)
the
respective Loan Group; and
(xxiv)
the
Custodian’s name, if there is more than one
Custodian.
The
Mortgage Loan Schedule, as in effect from time to time, shall also set forth
the
following information with respect to the Mortgage Loans in the aggregate and
by
Loan Group as of the Cut-off Date: (1) the number of Mortgage Loans;
(2) the current Principal Balance of the Mortgage Loans; (3) the
weighted average Loan Rate of the Mortgage Loans; and (4) the weighted
average remaining months to maturity of the Mortgage Loans. The Mortgage Loan
Schedule shall be amended from time to time by the Seller in accordance with
the
provisions of this Agreement.
“Mortgage
Note”:
The
original executed note or other evidence of indebtedness evidencing the
indebtedness of a Mortgagor under a Mortgage Loan.
“Mortgaged
Property”:
Either
of (x) the fee simple or leasehold interest in real property, together with
improvements thereto including any exterior improvements to be completed within
120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and Proprietary
Lease, securing the indebtedness of the Mortgagor under the related Mortgage
Loan.
“Mortgagor”:
The
obligor on a Mortgage Note.
“MT1-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT1-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 1 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 1 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT1-Z Interest
immediately preceding such Distribution Date.
31
“MT1-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT1-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 1 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 1 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT1-Y Interest immediately preceding such Distribution Date.
“MT2-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT2-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 2 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 2 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT2-Z Interest
immediately preceding such Distribution Date.
“MT2-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT2-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 2 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 2 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT2-Y Interest immediately preceding such Distribution Date.
“MTB-Y
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MTB-Z Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Net WAC Cap applicable to the Subordinate Certificates (computed assuming a
30-day accrual period) for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Subordinate Adjusted Cap Rate (computed assuming a 30-day accrual period) for
such Distribution Date, over (ii) the principal balance of the MTB-Z Interest
immediately preceding such Distribution Date.
“MTB-Z
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MTB-Y Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Subordinate
Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date divided
by
(B) the
product of (1) two multiplied
by
(2) the
Net WAC Cap applicable to the Subordinate Certificates (computed assuming a
30-day accrual period) for such Distribution Date, over (ii) the principal
balance of the MTB-Y Interest immediately preceding such Distribution
Date.
“MT2-YA1B
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the product of (I) the principal balance of the MT2-ZA1B Interest immediately
preceding such Distribution Date multiplied
by
(II) the
Group 2 Net WAC for such Distribution Date multiplied
by
(III)
two, divided
by
(b) the
Group 2 Adjusted Cap Rate (computed assuming a 30-day accrual period) for such
Distribution Date, over (ii) the principal balance of the MT2-ZA1B Interest
immediately preceding such Distribution Date.
“MT2-ZA1B
Target Balance”:
With
respect to any Distribution Date, the excess, if any, of (i) the quotient of
(a)
the principal balance of the MT2-YA1B Interest immediately preceding such
Distribution Date divided
by
(b) the
difference between (I) 100% minus (II) the quotient of (A) the Group 2 Adjusted
Cap Rate (computed assuming a 30-day accrual period) for such Distribution
Date
divided
by
(B) the
product of (1) two multiplied
by
(2) the
Group 2 Net WAC for such Distribution Date, over (ii) the principal balance
of
the MT2-YA1B Interest immediately preceding such Distribution Date.
32
“MTA”:
With
respect to each Accrual Period, a per annum rate determined on each MTA
Determination Date in the following manner by the Trustee on the basis of the
twelve-month moving average monthly yield on United States Treasury Securities
adjusted to a constant maturity of one year as published by the Federal Reserve
Board in the Federal Reserve Statistical Release “Selected Interest Rates
(H.15)”, determined by averaging the monthly yields for the most recently
available twelve months.
(a)
If on
any MTA Determination Date, MTA is no longer available, the Trustee shall select
a new index for the MTA Certificates that is based on comparable information.
When the Trustee selects a new index for the MTA Certificates, the Margin for
the MTA Certificates will increase or decrease by the difference the average
MTA
for the final three years it was in effect and the average of the most recent
three years for the replacement index. The Margin for the MTA Certificates
will
be increased by that difference if the average MTA is greater than the average
replacement index and the Margin for the MTA Certificates will be decreased
by
that difference if the average replacement index is greater than the average
MTA. The Trustee will have no liability for the selection of such alternative
index (and shall be entitled to rely on such advice, if any, as it may deem
appropriate in such selection), except that the Trustee will select a particular
index as the alternative index only if it receives an Opinion of Counsel, which
opinion shall be an expense reimbursed from the Distribution Account, that
the
selection of such index will not cause any REMIC created hereunder to lose
its
classification as a REMIC for federal income tax purposes.
(b)
The
establishment of MTA by the Trustee and the Trustee’s subsequent calculation of
the Pass-Through Rate applicable to the MTA Certificates for the relevant
Accrual Period, in the absence of manifest error, will be final and
binding.
“MTA
Certificates”:
The
Class 2-A1B Certificates.
“MTA
Determination Date”:
The
fifteenth day immediately prior the commencement of each Accrual Period for
the
MTA Certificates.
“Net
Deferred Interest”:
With
respect to each Loan Group and any Distribution Date, the greater of (i) the
excess, if any, of the Deferred Interest for the related Due Date over the
aggregate amount of any principal prepayments in part or in full received during
the related Prepayment Period and (ii) zero.
“Net
Interest Shortfall”:
With
respect to any Distribution Date, the excess of Interest Shortfalls, if any,
for
such Distribution Date over the sum of (i) Interest Shortfalls paid by the
Servicer under the Servicing Agreement with respect to such Distribution Date
and (ii) Compensating Interest Payments made with respect to such Distribution
Date.
33
“Net
Liquidation Proceeds”:
With
respect to any Liquidated Mortgage Loan or any other disposition of related
Mortgaged Property (including REO Property) the related Liquidation Proceeds
net
of Advances, Servicing Advances, the Expense Fee, and any other accrued and
unpaid fees received and retained in connection with the liquidation of such
Mortgage Loan or Mortgaged Property.
“Net
Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Loan
Rate for such Mortgage Loan minus the related Servicing Fee Rate, Trustee Fee
Rate, Custodial Fee Rate and, if applicable, the Lender Paid Mortgage Insurance
Rate.
“Net
Maximum Loan Rate”:
With
respect to any Mortgage Loan (or the related REO Property), as of any date
of
determination, a per annum rate of interest equal to the then applicable Maximum
Loan Rate for such Mortgage Loan minus the related Servicing Fee Rate, Trustee
Fee Rate, Custodial Fee Rate and, if applicable, the Lender Paid Mortgage
Insurance Rate.
“Net
Maximum Rate Cap”:
For
any Distribution Date and the Class 1-A1A and Class 1-A1B Certificates, the
Group 1 Net WAC Cap, computed by assuming that each Group 1 Mortgage Loan
accrued interest at its Net Maximum Loan Rate.
For
any
Distribution Date and the Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates,
the Group 2 Net WAC Cap, computed by assuming that each Group 2 Mortgage Loan
accrued interest at its Net Maximum Loan Rate.
For
any
Distribution Date and the Subordinate Certificates, the Net WAC Cap for the
Subordinate Certificates, computed by assuming that each Mortgage Loan accrued
interest at its Net Maximum Loan Rate.
“Net
Realized Losses”:
For
any Class of Certificates and any Distribution Date, the excess of (i) the
amount of Realized Losses previously allocated to that Class or PO Component
over (ii) the amount of any increases to the Class Principal Balance of that
Class or Component Principal Balance pursuant to Section 5.08 due to
Recoveries.
“Net
WAC”:
With
respect to any Distribution Date and each Loan Group, the Group 1 Net WAC or
the
Group 2 Net WAC, as applicable.
“Net
WAC Cap”:
For
any Distribution Date and the Class 1-A1A Certificates, the product of (i)
the
Group 1 Net WAC and (ii) a fraction, the numerator of which is 30 and the
denominator of which is the actual number of days in the related Accrual
Period.
With
respect to any Distribution Date and the Class 1-A1B Certificates, (a) the
product of (i) the Group 1 Net WAC and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the related
Accrual Period minus
(b) the
related Premium Rate for such Distribution Date.
34
With
respect to any Distribution Date and the Class 2-A1A Certificates, the product
of (i) the Group 2 Net WAC and (ii) a fraction, the numerator of which is 30
and
the denominator of which is the actual number of days in the related Accrual
Period.
With
respect to any Distribution Date and the Class 2-A1B Certificates, the Group
2
Net WAC.
With
respect to any Distribution Date and the Class 2-A1C Certificates, (a) the
product of (i) the Group 2 Net WAC and (ii) a fraction, the numerator of which
is 30 and the denominator of which is the actual number of days in the related
Accrual Period minus
(b) the
related Premium Rate for such Distribution Date.
With
respect to any Distribution Date and the Subordinate Certificates, the product
of (i) the Subordinate Net WAC and (ii) a fraction, the numerator of which
is 30
and the denominator of which is the actual number of days in the related Accrual
Period.
“Nonrecoverable”:
A
determination by the Servicer in respect of a delinquent Mortgage Loan that
if
it were to make an Advance or an advance of a delinquent Monthly Payment,
respectively, in respect thereof, such amount would not be recoverable from
any
collections or other recoveries (including Liquidation Proceeds) on such
Mortgage Loan.
“Notice”:
As
defined in the Financial Guaranty Insurance Policy.
“Officers’
Certificate”:
A
certificate signed by the Chairman of the Board, the Vice Chairman of the Board,
the President or a vice president (however denominated), or by the Treasurer,
the Secretary, or one of the assistant treasurers or assistant secretaries
of
the Seller or the Depositor, as applicable.
“One-Month
MTA”:
The
twelve-month average yields on United States Treasury securities adjusted to
a
constant maturity of one year as published by the Federal Reserve Board in
Statistical Release H.15(519).
“One-Month
MTA Indexed”:
Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the
basis of the MTA index.
“Opinion
of Counsel”:
A
written opinion of counsel, who may, without limitation, be a salaried counsel
for the Depositor or the Seller, acceptable to the Trustee, except that any
opinion of counsel relating to (a) the qualification of any REMIC created
hereunder as a REMIC or (b) compliance with the REMIC Provisions must be an
opinion of Independent counsel.
35
“Original
Applicable Credit Support Percentage”:
With
respect to each Class of Subordinate Certificates, the corresponding percentage
set forth below opposite its Class designation:
Class
B-1
10.50
%
Class
B-2
8.50
%
Class
B-3
7.10
%
Class
B-4
6.25
%
Class
B-5
5.45
%
Class
B-6
4.75
%
Class
B-7
4.10
%
Class
B-8
3.55
%
Class
B-9
3.05
%
Class
B-10
2.60
%
Class
B-11
1.80
%
Class
B-12
0.80
%
“Original
Class Notional Balance”:
With
respect to the Class X-1 Certificates, $1,483,848,897.20. With respect to the
Class X-2A1B Certificates, $259,961,100.00.
“Original
Class Principal Balance”:
With
respect to each Class of Certificates, other than the Interest-Only
Certificates, Class PO Certificates and the Class A-R-II Certificates, the
corresponding aggregate amount set forth opposite the Class designation of
such
Class in the Preliminary Statement.
“Original
Subordinated Principal Balance”:
The
aggregate of the Original Class Principal Balances of the Classes of Subordinate
Certificates.
“Originator”:
Countrywide or any other originator contemplated by Item
1110 (Sec.
229.1110) of
Regulation AB.
“OTS”:
The
Office of Thrift Supervision.
“Outstanding
Mortgage Loan”:
As of
any Due Date, a Mortgage Loan with a Stated Principal Balance greater than
zero,
that was not the subject of a prepayment in full prior to such Due Date and
that
did not become a Liquidated Mortgage Loan prior to such Due Date.
“Ownership
Interest”:
As to
any Certificate, any ownership or security interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial, as owner
or
as pledgee.
“Pass-Through
Rate”:
With
respect to each Class of Certificates (other than the Class PO and Class A-R-II
Certificates) and any Distribution Date, the rate set forth below:
(i) The
Pass-Through Rate for the Class 1-A1A Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
36
(ii) The
Pass-Through Rate for the Class 1-A1B Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(iii) The
Pass-Through Rate for the Class A-R Certificate shall be equal to the Group
1
Net WAC for that Distribution Date;
(iv) The
Pass-Through Rate for the Class 2-A1A Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(v) The
Pass-Through Rate for the Class 2-A1B Certificates shall be equal to the least
of (a) MTA plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(vi) The
Pass-Through Rate for the Class 2-A1C Certificates shall be equal to the least
of (a) LIBOR plus the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) the applicable Net Maximum Rate Cap;
(vii) The
Pass-Through Rate for the Class X-1 Certificates on any Distribution Date shall
be equal to the quotient of (a) the product of (1) the excess, if any, of (i)
the interest accrued on the Mortgage Loans for the related Due Period (net
of Expense Fees) minus (ii) the interest accrued for the related Accrual
Period on the Certificates (other than the Class X-1 Certificates) multiplied
by
(2) 12,
divided
by
(b) the
Class X-1 Notional Balance for such Distribution Date;
(viii) The
Pass-Through Rate for the Class X-2A1B Certificates on any Distribution Date
shall be equal to the excess, if any, of (a) the
Group 2 Net WAC minus (b) a rate equal to the quotient of (1) the product of
(x)
the interest accrued at the applicable Pass-Through Rates on the Class 2-A1B
Certificates for such Distribution Date and (y) 12 divided
by
(2) the aggregate Class Principal Balance of the Class 2-A1B and Class PO-2A1B
Certificates as of the first day of the month immediately preceding such
Distribution Date;
(ix) The
Pass-Through Rate for the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5,
Class B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class B-11 and Class
B-12 Certificates shall be equal to the least of (a) LIBOR plus the
applicable Margin, (b) the Subordinate Net WAC Cap for that Distribution
Date and (c) the applicable Net Maximum Rate Cap for that Distribution
Date.
“Percentage
Interest”:
With
respect to any Certificate other than a Class A-R or Class A-R-II Certificate,
a
fraction, expressed as a percentage, the numerator of which is the Initial
Certificate Principal Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of which is
the
Original Class Principal Balance or Original Class Notional Balance, as
applicable, of the related Class. With respect to the Class A-R and Class A-R-II
Certificates, 100%.
37
“Permitted
Investments”:
Any
one or more of the following obligations or securities acquired at a purchase
price of not greater than par, regardless of whether issued or managed by the
Depositor, the Trustee or any of their respective Affiliates or for which an
Affiliate of the Trustee serves as an advisor:
(i) direct
obligations of, or obligations fully guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
thereof, provided such obligations are backed by the full faith and credit
of
the United States;
(ii) (A)
demand and time deposits in, certificates of deposit of, bankers’ acceptances
issued by or federal funds sold by any depository institution or trust company
(including the Trustee, or its agents acting in their respective commercial
capacities) incorporated under the laws of the United States of America or
any
state thereof and subject to supervision and examination by federal and/or
state
authorities, so long as, at the time of such investment or contractual
commitment providing for such investment, such depository institution or trust
company or its ultimate parent has a short-term uninsured debt rating in one
of
the two highest available rating categories of each Rating Agency and (B) any
other demand or time deposit or deposit which is fully insured by the
FDIC;
(iii) repurchase
obligations with respect to any security described in clause (i) above and
entered into with a depository institution or trust company (acting as
principal) rated A or higher by each Rating Agency;
(iv) securities
bearing interest or sold at a discount that are issued by any corporation
incorporated under the laws of the United States of America, the District of
Columbia or any State thereof and that are rated by each Rating Agency in its
highest long-term unsecured rating categories at the time of such investment
or
contractual commitment providing for such investment;
(v) commercial
paper (including both non-interest-bearing discount obligations and
interest-bearing obligations) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi) units
of
money market funds (which may be 12b-1 funds, as contemplated by the Commission
under the Investment Company Act of 1940) registered under the Investment
Company Act of 1940 including funds managed or advised by the Trustee or an
affiliate thereof having the highest applicable rating from each Rating Agency;
and
(vii) if
previously confirmed in writing to the Trustee, any other demand, money market
or time deposit, or any other obligation, security or investment, as may be
acceptable to each Rating Agency in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial ratings
of
the Senior Certificates;
provided,
however,
that no
instrument described hereunder shall evidence either the right to receive (a)
only interest with respect to the obligations underlying such instrument or
(b)
both principal and interest payments derived from obligations underlying such
instrument and the interest and principal payments with respect to such
instrument provide a yield to maturity at par greater than 120% of the yield
to
maturity at par of the underlying obligations.
38
“Permitted
Transferee”:
Any
Transferee of a Residual Certificate other than a Disqualified Organization
or a
non-U.S. Person.
“Person”:
Any
individual, corporation, partnership, limited liability company, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“Physical
Certificates”:
The
Class A-R and Class A-R-II Certificates.
“PO
Component”:
Each
of the PO-1A1 Component and the Class PO-1A2 Component, as
applicable.
“PO-1A1
Component”:
The
Principal-Only Component of the Class PO-1 Certificates that relates to the
Group 1 Mortgage Loans.
“PO-1A1
Component Principal Balance”:
As of
the Closing Date, $50; thereafter, as increased by amounts of Net Deferred
Interest allocated to the Class X-1 Certificates in respect of the Group 1
Mortgage Loan as set forth in Section 5.02 herein.
“PO-1A2
Component”:
The
Principal-Only Component of the Class PO-1 Certificates that relates to the
Group 2 Mortgage Loans.
“PO-1A2
Component Principal Balance”:
As of
the Closing Date, $50; thereafter, as increased by amounts of Net Deferred
Interest allocated to the Class X-1 Certificates in respect of the Group 2
Mortgage Loan as set forth in Section 5.02 herein.
“Policy
Account”:
The
trust account or accounts created and maintained by the Trustee pursuant to
Section 4.05 hereof in the name of the Trustee for the benefit of the Class
1-A1B and Class 2-A1C Certificateholders and designated “Policy Account, U.S.
Bank National Association, as Trustee, in trust for the registered
Certificateholders of HarborView Mortgage Loan Trust 2006-1, Mortgage
Pass-Through Certificates, Series 2006-1, Class 1-A1B and Class 2-A1C
Certificates.”
“Pool
Balance”:
With
respect to any Distribution Date, the aggregate of the Stated Principal
Balances, as of the first day of the related Due Period, of the Mortgage Loans
that were Outstanding Mortgage Loans on that day.
“Pool
Collateral Balance”:
As of
any date of determination, the Pool Balance.
“Premium
Amount”:
Each
of the Class 1-A1B Premium Amount or Class 2-A1C Premium Amount, as
applicable.
“Premium
Proceeds”:
The
amount by which the Termination Price paid in connection with the termination
pursuant to Section 10.01 exceeds the sum of (i) unpaid principal and accrued
and unpaid interest on the Certificates (excluding any Basis Risk Shortfalls
that remain unpaid), (ii) unreimbursed Advances and Servicing Advances and
(iii)
all amounts, if any, then due and owing to the Trustee and the Certificate
Insurer under this Agreement.
39
“Premium
Rate”:
0.09%
of the outstanding aggregate Class Principal Balances of the Class 1-A1B and
Class 2-A1C Certificates.
“Prepayment
Penalty Amount”:
With
respect to any Mortgage Loan and each Distribution Date, all premiums or
charges, if any, paid by Mortgagors under the related Mortgage Notes as a result
of full or partial Principal Prepayments collected and deposited into the
Distribution Account during the immediately preceding Prepayment Period, under
the terms of the Servicing Agreement.
“Prepayment
Period”:
With
respect to any Distribution Date the calendar month preceding the month in
which
such Distribution Date occurs.
“Primary
Insurance Policy”:
Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as
evidenced by a policy or certificate.
“Principal
Balance”:
As to
any Mortgage Loan, other than a Liquidated Mortgage Loan, and any day, the
related Cut-off Date Principal Balance, minus
all
collections credited against the Principal Balance of such Mortgage Loan after
the applicable Cut-off Date, as increased by the amount of any Deferred Interest
added to the outstanding Principal Balance of such Mortgage Loan pursuant to
the
terms of the related Mortgage Note. For purposes of this definition, a
Liquidated Mortgage Loan shall be deemed to have a Principal Balance equal
to
the Principal Balance of the related Mortgage Loan as of the final recovery
of
related Liquidation Proceeds and a Principal Balance of zero thereafter. As
to
any REO Property and any day, the Principal Balance of the related Mortgage
Loan
immediately prior to such Mortgage Loan becoming REO Property.
“Principal
DeficiencyAmount”:
For
any Distribution Date and for any Undercollateralized Group, the excess, if
any,
of the aggregate Class Principal Balance and Component Principal Balance of
such
Undercollateralized Group immediately prior to such Distribution Date over
the
sum of the Principal Balances of the Mortgage Loans in the related Loan Group
immediately prior to such Distribution Date.
“Principal
Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of (a) each
scheduled payment of principal collected or advanced on the related Mortgage
Loans (before taking into account any Deficient Valuations or Debt Service
Reductions) by the Servicer in respect of the related Due Period, (b) that
portion of the Purchase Price, representing principal of any repurchased
Mortgage Loan in that Loan Group, deposited to the Distribution Account during
the related Prepayment Period, (c) the principal portion of any related
Substitution Adjustments with respect to that Loan Group deposited in the
Distribution Account during the related Prepayment Period, (d) the
principal portion of all Insurance Proceeds received during the related
Prepayment Period with respect to Mortgage Loans in that Loan Group that are
not
yet Liquidated Mortgage Loans, (e) the principal portion of all Net
Liquidation Proceeds received during the related Prepayment Period with respect
to Liquidated Mortgage Loans other than Recoveries in that Loan Group,
(f) all Principal Prepayments (net of Deferred Interest) in part or in full
on Mortgage Loans in that Loan Group applied by the Servicer during the related
Prepayment Period, (g) all Recoveries related to that Loan Group received during
the calendar month preceding the month of that Distribution Date and (h) on
the Distribution Date on which the Trust is to be terminated pursuant to Section
10.01 hereof, that portion of the Termination Price in respect of principal
for
that Loan Group.
40
“Principal-Only
Component”:
Any PO
Component, as applicable.
“Principal
Prepayment”:
Any
payment of principal made by the Mortgagor on a Mortgage Loan that is received
in advance of its scheduled Due Date and that is not accompanied by an amount
of
interest representing the full amount of scheduled interest due on any Due
Date
in any month or months subsequent to the month of prepayment.
“Private
Certificates”:
The
Class B-10, Class B-11, Class B-12 and Class A-R-II Certificates.
“Private
Placement Memorandum”:
The
Private Placement Memorandum dated January 25, 2006 relating to the initial
sale
of the Class B-10, Class B-11 and Class B-12 Certificates.
“Pro
Rata Share”:
With
respect to any Distribution Date and any Class of Subordinate Certificates,
the
portion of the Subordinate Principal Distribution Amount allocable to such
Class, equal to the product of the (a) Subordinate Principal Distribution Amount
on such date and (b) a fraction, the numerator of which is the related Class
Principal Balance of that Class and the denominator of which is the aggregate
of
the Class Principal Balances of all the Classes of Subordinate
Certificates.
“Proprietary
Lease”:
With
respect to any Cooperative Unit, a lease or occupancy agreement between a
Cooperative Corporation and a holder of related Cooperative Shares.
“Prospectus”:
The
Prospectus Supplement, together with the accompanying prospectus dated September26, 2005, relating to the Senior Certificates and the Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class
B-9
Certificates.
“Prospectus
Supplement”:
The
Prospectus Supplement dated January 25, 2006 relating to the offering of the
Senior Certificates and the Class B-1, Class B-2, Class B-3, Class B-4, Class
B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates.
“Purchase
Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement dated as of April 1,2003,
as amended by that certain Amendment Number One dated November 1, 2004, and
as
further amended by that certain Amendment Reg AB dated December 1, 2005, between
GCFP, as purchaser, and Countrywide, as seller, as reconstituted by the
Reconstitution Agreement, and as supplemented by the Representation Letter,
as
the same may be amended from time to time, and any assignments and conveyances
related to the Mortgage Loans.
“Purchase
Price”:
With
respect to any Mortgage Loan or REO Property to be purchased pursuant to or
as
contemplated by Section 2.03 hereof, and as confirmed by an Officers’
Certificate from the Seller to the Trustee, an amount equal to the sum of
(i) 100% of the Principal Balance thereof as of the date of purchase (or
such other price as provided in Section 10.01), plus (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal Balance at the
applicable Loan Rate (or if the servicer is repurchasing such Mortgage Loan,
the
Loan Rate minus the Servicing Fee Rate) from the Due Date as to which interest
was last covered by a payment by the Mortgagor through the end of the calendar
month in which the purchase is to be effected, and (y) an REO Property, the
sum of (1) accrued interest on such Principal Balance at the applicable
Loan Rate (or if the servicer is repurchasing such Mortgage Loan, the Loan
Rate
minus the Servicing Fee Rate) from the Due Date as to which interest was last
covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such
REO
Property for each calendar month commencing with the calendar month in which
such REO Property was acquired and ending with the calendar month in which
such
purchase is to be effected, net of the total of all net rental income, Insurance
Proceeds and Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus (iii) any
unreimbursed Servicing Advances and any unpaid Expense Fees allocable to such
Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan
required to be purchased pursuant to Section 2.03 hereof, expenses reasonably
incurred or to be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and damages
incurred by the Trust in connection with any violation by such Mortgage Loan
of
any predatory- or abusive-lending laws.
41
“Qualified
Insurer”:
A
mortgage guaranty insurance company duly qualified as such under the laws of
the
state of its principal place of business and each state having jurisdiction
over
such insurer in connection with the insurance policy issued by such insurer,
duly authorized and licensed in such states to transact a mortgage guaranty
insurance business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a Fannie Mae-approved mortgage
insurer and having a claims paying ability rating of at least “AA” or equivalent
rating by a nationally recognized statistical rating organization. Any
replacement insurer with respect to a Mortgage Loan must have at least as high
a
claims paying ability rating as the insurer it replaces had on the Closing
Date.
“Qualified
Substitute Mortgage Loan”:
A
mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms
of
this Agreement which must, on the date of such substitution, (i) have an
outstanding principal balance, after application of all scheduled payments
of
principal and interest due during or prior to the month of substitution, not
in
excess of, and not more than 5% less than, the Principal Balance of the Deleted
Mortgage Loan as of the Due Date in the calendar month during which the
substitution occurs, (ii) have a maximum loan rate not less than the
Maximum Loan Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv)
have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment
date not more than two months after the next Adjustment Date of the Deleted
Mortgage Loan, (vi) have a remaining term to maturity not greater than (and
not
more than one year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a Loan-to-Value Ratio
as of the date of substitution equal to or lower than the Loan-to-Value Ratio
of
the Deleted Mortgage Loan as of such date, (ix) have been underwritten or
re-underwritten in accordance with the same or substantially similar
underwriting criteria and guidelines as the Deleted Mortgage Loan, (x) is of
the
same or better credit quality as the Deleted Mortgage Loan and (xi) conform
to each representation and warranty set forth in Section 2.04 hereof applicable
to the Deleted Mortgage Loan. In the event that one or more mortgage loans
are
substituted for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate principal
balances, the terms described in clause (vi) hereof shall be determined on
the basis of weighted average remaining term to maturity and the Loan-to-Value
Ratio described in clause (viii) hereof shall be satisfied as to each such
mortgage loan and, except to the extent otherwise provided in this sentence,
the
representations and warranties described in clause (x) hereof must be
satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate,
as
the case may be.
42
“Rating
Agency”:
Each
of S&P and Moody’s. If any rating agency or its successor shall no longer be
in existence, “Rating Agency” shall include such nationally recognized
statistical rating agency, or other comparable Person, as shall have been
designated by the Depositor, notice of which designation shall be given to
the
Trustee.
“Realized
Loss”:
With
respect to any Liquidated Mortgage Loan, the amount of loss realized equal
to
the portion of the Principal Balance remaining unpaid after application of
all
Net Liquidation Proceeds in respect of such Liquidated Mortgage
Loan.
“Recognition
Agreement”:
With
respect to any Cooperative Loan, an agreement between the related Cooperative
Corporation and the originator of such Mortgage Loan to establish the rights
of
such originator in the related Cooperative Property.
“Reconstitution
Agreement”:
The
reconstituted servicing agreement dated as of January 1, 2006 among the Seller,
Countrywide and the Servicer and acknowledged by the Trustee.
“Record
Date”:
With
respect to each Distribution Date (other than the initial Distribution Date)
and
the MTA Certificates, the Interest-Only Certificates and the Class A-R
Certificates, the last Business Day of the calendar month immediately preceding
the month in which that Distribution Date occurs. With respect to each
Distribution Date (other than the initial Distribution Date) and the LIBOR
Certificates, the last Business Day immediately preceding that Distribution
Date, unless any LIBOR Certificates are no longer Book-Entry Certificates,
in
which case the Record Date for the related Class of LIBOR Certificates shall
be
the last Business Day of the calendar month immediately preceding the month
in
which that Distribution Date occurs. With respect to the initial Distribution
Date and all Classes of Certificates, the Closing Date.
“Recovery”:
With
respect to any Distribution Date and Mortgage Loan that became a Liquidated
Mortgage Loan in a month preceding the month prior to that Distribution Date
and
with respect to which the related Realized Loss was allocated to one or more
Classes of Certificates or Principal-Only Components, an amount received in
respect of such Liquidated Mortgage Loan during the prior calendar month, net
of
any reimbursable expenses.
“Reference
Bank”
shall
be a leading bank engaged in transactions in Eurodollar deposits in the
international Eurocurrency market, which shall not control, be controlled by,
or
be under common control with, the Trustee and shall have an established place
of
business in London. Until all of the LIBOR Certificates are paid in full, the
Trustee will at all times retain at least four Reference Banks for the purpose
of determining LIBOR with respect to each LIBOR Determination Date. The Trustee
initially shall designate the Reference Banks (after consultation with the
Depositor). If any such Reference Bank should be unwilling or unable to act
as
such or if the Trustee should terminate its appointment as Reference Bank,
the
Trustee shall promptly appoint or cause to be appointed another Reference Bank
(after consultation with the Depositor). The Trustee shall have no liability
or
responsibility to any Person for (i) the selection of any Reference Bank
for purposes of determining LIBOR or (ii) any inability to retain at least
four Reference Banks which is caused by circumstances beyond its reasonable
control.
43
“Refinancing
Mortgage Loan”:
Any
Mortgage Loan originated in connection with the refinancing of an existing
mortgage loan.
“Regular
Certificate”:
Any
Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-1,
Class X-2A1B, Class PO-1, Class PO-2A1B, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class
B-11 or Class B-12 Certificate.
“Regulation
AB”:
Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
Sec.Sec.229.1100-229.1123, as such may be amended from time to time, and subject
to such clarification and interpretation as have been provided by the Commission
in the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
Commission, or as may be provided by the Commission or its staff from time
to
time.
“Regulation S”:
Regulation S promulgated under the Securities Act or any successor
provision thereto, in each case as the same may be amended from time to time;
and all references to any rule, section or subsection of, or definition or
term
contained in, Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case as the
same
may be amended from time to time.
“Regulation
S Global Security”:
The
meaning specified in Section 6.01.
“Relief
Act”:
The
Servicemembers Civil Relief Act, as amended, or any similar state or local
law.
“Relief
Act Reductions”:
With
respect to any Distribution Date and any Mortgage Loan as to which there has
been a reduction in the amount of interest collectible thereon for the most
recently ended Due Period as a result of the application of the Relief Act,
the
amount, if any, by which (i) interest collectible on that Mortgage Loan during
such Due Period is less than (ii) one month’s interest on the Stated Principal
Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before
giving effect to the application of the Relief Act.
“REMIC”:
A
“real estate mortgage investment conduit” within the meaning of Section 860D of
the Code.
44
“REMIC
Opinion”:
An
Independent Opinion of Counsel, to the effect that the proposed action described
therein would not, under the REMIC Provisions, (i) cause any REMIC created
hereunder to fail to qualify as a REMIC while any regular interest in such
REMIC
is outstanding, (ii) result in a tax on prohibited transactions with respect
to
any REMIC created hereunder or (iii) constitute a taxable contribution to any
REMIC created hereunder after the Startup Day.
“REMIC
Provisions”:
Provisions of the federal income tax law relating to real estate mortgage
investment conduits which appear at Section 860A through 860G of Subchapter
M of
Chapter 1 of the Code, and related provisions, and regulations and rulings
promulgated thereunder, as the foregoing may be in effect from time to
time.
“Remittance
Report”:
The
Servicer’s Remittance Report to the Trustee pursuant to the Servicing Agreement
providing information with respect to each Mortgage Loan which is provided
no
later than the 10th
calendar
day of each month and which shall contain such information as may be agreed
upon
by the Trustee and which shall be sufficient to enable the Trustee to prepare
the related Distribution Date Statement.
“Rents
from Real Property”:
With
respect to any REO Property, gross income of the character described in Section
856(d) of the Code.
“REO
Account”:
The
account or accounts maintained by the Servicer in respect of an REO Property
pursuant to the Servicing Agreement.
“REO
Disposition”:
The
sale or other disposition of an REO Property on behalf of the
Trust.
“REO
Imputed Interest”:
As to
any REO Property, for any calendar month during which such REO Property was
at
any time part of the Trust Fund, one month’s interest at the applicable Net Loan
Rate for such REO Property on the Principal Balance of such REO Property (or,
in
the case of the first such calendar month, of the related Mortgage Loan if
appropriate) as of the Close of Business on the Due Date in such calendar
month.
“REO
Principal Amortization”:
With
respect to any REO Property, for any calendar month, the excess, if any, of
(a)
the aggregate of all amounts received in respect of such REO Property during
such calendar month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination Price paid
in
connection with a purchase of all of the Mortgage Loans and REO Properties
pursuant to Section 10.01 hereof that is allocable to such REO Property) or
otherwise, net of any portion of such amounts (i) payable pursuant to the
applicable provisions of the Servicing Agreement in respect of the proper
operation, management and maintenance of such REO Property or (ii) payable
or
reimbursable to the Servicer pursuant to the applicable provisions of the
Servicing Agreement for unpaid Servicing Fees in respect of the related Mortgage
Loan and unreimbursed Servicing Advances and Advances in respect of such REO
Property or the related Mortgage Loan, over (b) the REO Imputed Interest in
respect of such REO Property for such calendar month.
45
“REO
Property”:
A
Mortgaged Property acquired by the Servicer on behalf of the Trust Fund through
foreclosure or deed-in-lieu of foreclosure in accordance with the applicable
provisions of the Servicing Agreement.
“Representation
Letter”:
The
letter from Countrywide to GCFP dated as of the Closing Date, pursuant to which
Countrywide, under the terms of the Purchase Agreement, makes additional
representations and warranties as agreed upon by GCFP and Countrywide.
“Request
for Release”:
A
release signed by a Servicing Officer, in the form of Exhibit F attached
hereto.
“Residential
Dwelling”:
Any
one of the following: (i) a detached one-family dwelling, (ii) a
detached two- to four-family dwelling, (iii) a one-family dwelling unit in
a condominium project, (iv) a manufactured home, (v) a cooperative unit or
(vi)
a detached one-family dwelling in a planned unit development, none of which
is a
mobile home.
“Residual
Certificate”:
Each
of the Class A-R and Class A-R-II Certificates.
“Responsible
Officer”:
When
used with respect to the Trustee or any director, the President, any vice
president, any assistant vice president, any associate or any other officer
of
the Trustee customarily performing functions similar to those performed by
any
of the above designated officers and, with respect to a particular matter,
to
whom such matter is referred because of such officer’s knowledge of and
familiarity with the particular subject.
“Restricted
Classes”:
As
defined in Section 5.01(d).
“Restricted
Global Security”:
As
defined in Section 6.01.
“Sarbanes-Oxley
Certification”:
A
written certification covering, among other things, servicing of the Mortgage
Loans by the Servicer and signed by an officer of the Depositor that complies
with (i) the Sarbanes-Oxley Act of 2002, as amended from time to time, and
(ii)
the February 21, 2003 Statement by the Staff of the Division of Corporation
Finance of the Securities and Exchange Commission Regarding Compliance by
Asset-Backed Issuers with Exchange Act Rules 13a-14 and 15d-14, as in effect
from time to time; provided that if, after the Closing Date (a) the
Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred to in clause
(ii) is modified or superseded by any subsequent statement, rule or regulation
of the Securities and Exchange Commission or any statement of a division
thereof, or (c) any future releases, rules and regulations are published by
the
Securities and Exchange Commission from time to time pursuant to the
Sarbanes-Oxley Act of 2002, which in any such case affects the form or substance
of the required certification and results in the required certification being,
in the reasonable judgment of the Depositor, materially more onerous than the
form of the required certification as of the Closing Date, the Sarbanes-Oxley
Certification shall be as agreed to by the Depositor and the Seller following
a
negotiation in good faith to determine how to comply with any such new
requirements.
“S&P”:
Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies,
Inc., and any successor thereto.
46
“Securities
Act”:
The
Securities Act of 1933, as amended.
“Security
Agreement”:
With
respect to any Cooperative Loan, the agreement between the owner of the related
Cooperative Shares and the originator of the related Mortgage Note that defines
the terms of the security interest in such Cooperative Shares and the related
Proprietary Lease.
“Seller”:
GCFP,
in its capacity as seller under this Agreement.
“Senior
Certificate”:
Any of
the Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B, Class 2-A1C, Class
X-1,
Class PO-1, Class A-R or Class A-R-II Certificates.
“Senior
Certificate Group”:
Any of
(a) the Class 1-A1A, Class 1-A1B and Class A-R, with respect to Loan Group
1,
(b) the Class 2-A1A, Class 2-A1B, Class 2-A1C, Class X-2A1B and Class PO-2A1B
Certificates with respect to Loan Group 2 and (c) the Class PO-1 and Class
X-1
Certificates with respect to both Loan Groups.
“Senior
Certificateholder”:
Any
Holder of a Senior Certificate.
“Senior
Credit Support Depletion Date”:
The
first Distribution Date on which the Class Principal Balance of each Class
of
Subordinate Certificates has been reduced to zero.
“Senior
Percentage”:
With
respect to each Loan Group and any Distribution Date, the percentage equivalent
of a fraction the numerator of which is the aggregate of the Class Principal
Balances and Component Principal Balances of the Classes of Senior Certificates
and Principal-Only Components relating to that Loan Group immediately prior
to
such Distribution Date and the denominator of which is the Loan Group Balance
in
the related Loan Group for such Distribution Date; provided,
however,
that on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates and Principal-Only Component related to a Loan Group,
the Senior Percentage for the related Loan Group will be equal to 0% and;
provided,
further,that
on
any Distribution Date after a Senior Termination Date has occurred with respect
to the Senior Certificates and Principal-Only Component related to a Loan Group,
the Senior Percentage of the Loan Group related to the remaining Senior
Certificates and Principal-Only Component is the percentage equivalent of a
fraction, the numerator of which is the aggregate of the Certificate Principal
Balances of each remaining Class of Senior Certificates and Principal-Only
Component immediately prior to such date and the denominator of which is the
aggregate of the Certificate Principal Balances of all Classes of Certificates,
immediately prior to such date.
“Senior
Prepayment Percentage”:
With
respect to each Loan Group and any Distribution Date before the Distribution
Date in February 2016, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Loan Group for any Distribution Date occurring on or after
the tenth anniversary of the first Distribution Date will be as follows:
(i) from February 2016 through January 2017, the related Senior Percentage
plus 70% of the related Subordinate Percentage for that Distribution Date;
(ii) from February 2017through
January 2018, the related Senior Percentage plus 60% of the related Subordinate
Percentage for that Distribution Date; (iii) from February 2018through
January 2019, the related Senior Percentage plus 40% of the related Subordinate
Percentage for that Distribution Date; (iv) from February 2019through
January 2020, the related Senior Percentage plus 20% of the related Subordinate
Percentage for that Distribution Date; and (v) from and after February
2020, the related Senior Percentage for that Distribution Date; provided,
however, that
there shall be no reduction in the Senior Prepayment Percentage for any Loan
Group unless the Step Down Conditions are satisfied on that Distribution Date;
and provided,
further,
that if
on any Distribution Date occurring on or after the Distribution Date in February
2016, the Senior Percentage for any Loan Group exceeds the initial Senior
Percentage for such Loan Group, the related Senior Prepayment Percentage for
that Distribution Date will again equal 100%.
47
Notwithstanding
the above, (i) if on any Distribution Date prior to the Distribution Date in
February 2009 the Two Times Test is satisfied, the Senior Prepayment Percentage
for each Loan Group will equal the related Senior Percentage for such
Distribution Date plus 50% of an amount equal to 100% minus the related Senior
Percentage for such Distribution Date and (ii)if
on any
Distribution Date on or after the Distribution Date in February 2009 the Two
Times Test is satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution
Date.
“Senior
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, the sum of:
(1) the
related Senior Percentage of all amounts described in clauses (a) through (d)
of
the definition of “Principal Distribution Amount” with respect to such Loan
Group for that Distribution Date; plus
(2) with
respect to each Mortgage Loan in that Loan Group which became a Liquidated
Mortgage Loan during the related Prepayment Period, the lesser of
(x)
the
related Senior Percentage of the Stated Principal Balance of that
Mortgage
Loan; and
(y)
the
related Senior Prepayment Percentage of the amount of the Net Liquidation
Proceeds allocable to principal received with respect to that Mortgage
Loan; plus
(3) the
related Senior Prepayment Percentage of the amounts described in clauses (f)
and
(g) of the definition of “Principal Distribution Amount” with respect to
such
Loan
Group.
“Senior
Termination Date”:
For
each Senior Certificate Group and Principal-Only Component, the Distribution
Date on which the aggregate of the Class Principal Balances and related
Component Principal Balance of the related Senior Certificates and
Principal-Only Component is reduced to zero.
“Servicer”:
Countrywide Home Loans Servicing LP, as primary servicer of the Mortgage Loans
as set forth and as individually defined in the Mortgage Loan Schedule hereto
and any successors thereto.
48
“Servicer
Remittance Date”:
The
“Remittance Date” defined in the Servicing Agreement.
“Servicing
Account”:
Any
account established and maintained by the Servicer with respect to the related
Mortgage Loans and any REO Property, pursuant to the terms of the Servicing
Agreement.
“Servicing
Addendum”:
As
defined in the Servicing Agreement.
“Servicing
Advances”:
With
respect to the Servicer, all customary, reasonable and necessary “out of pocket”
costs and expenses (including reasonable attorneys’ fees and expenses) incurred
by the Servicer in the performance of its servicing obligations hereunder,
including, but not limited to, the cost of (i) the preservation, restoration,
inspection and protection of the Mortgaged Property, (ii) any enforcement or
judicial proceedings, including foreclosures, (iii) the management and
liquidation of the REO Property and (iv) compliance with the obligations under
Article III hereof or the Servicing Agreement.
“Servicing
Agreement”:
The
Master Mortgage Loan Purchase and Servicing Agreement dated as of April 1,2003,
as amended by that certain Amendment Number One dated November 1, 2004, and
as
further amended by that certain Amendment Reg AB dated December 1, 2005, between
GCFP, as purchaser, and Countrywide, as seller, as reconstituted by the
Reconstitution Agreement, as the same may be amended from time to time, and
any
assignments and conveyances related to the Mortgage Loans.
“Servicing
Fee”:
With
respect to the Servicer and each Mortgage Loan and for any calendar month,
the
fee payable to the Servicer determined pursuant to the Servicing
Agreement.
“Servicing
Fee Rate”:
With
respect to each Mortgage Loan, the per annum servicing fee rate set forth on
the
Mortgage Loan Schedule.
“Servicing
Officer”:
Any
officer of the Servicer involved in, or responsible for, the administration
and
servicing of Mortgage Loans, whose name and specimen signature appear on a
list
of servicing officers furnished to the Trustee and the Depositor on the Closing
Date, as such list may from time to time be amended.
“Sponsor”:
Greenwich Capital Financial Products, Inc.
“Startup
Day”:
As
defined in Section 9.01(b) hereof.
“Stated
Principal Balance”:
With
respect to any Mortgage Loan: (a) as of any date of determination up to and
including the Distribution Date on which the proceeds, if any, of a Liquidation
Event with respect to such Mortgage Loan would be distributed, the Cut-off
Date
Principal Balance of such Mortgage Loan minus,
in the
case of each Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the applicable Cut-off Date
and
on or before the Due Date in the related Due Period, whether or not received,
(ii) all Principal Prepayments received after the applicable Cut-off Date,
to the extent distributed pursuant to Section 5.01 before such date of
determination and (iii) all Liquidation Proceeds and Insurance Proceeds
applied by the Servicer as recoveries of principal in accordance with the
applicable provisions of the Servicing Agreement, to the extent distributed
pursuant to Section 5.01 such date of determination and (b) as of any date
of determination subsequent to the Distribution Date on which the proceeds,
if
any, of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero; provided
that,
such
Stated Principal Balance shall be increased by the amount of any Deferred
Interest added to the outstanding Principal Balance of such Mortgage Loan
pursuant to the terms of the related Mortgage Note. With respect to any REO
Property: (x) as of any date of determination up to and including the
Distribution Date on which the proceeds, if any, of a Liquidation Event with
respect to such REO Property would be distributed, an amount (not less than
zero) equal to the Stated Principal Balance of the related Mortgage Loan as
of
the date on which such REO Property was acquired on behalf of the Trust, minus
the aggregate amount of REO Principal Amortization in respect of such REO
Property for all previously ended calendar months, to the extent distributed
pursuant to Section 5.01 before such date of determination; and (y) as
of any date of determination subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such REO Property
would
be distributed, zero.
49
“Step
Down Conditions”:
As of
the first Distribution Date as to which any decrease in any Senior Prepayment
Percentage applies and each Loan Group, (i) the outstanding Principal Balance
of
all Mortgage Loans in such Loan Group 60 days or more Delinquent (including
related Mortgage Loans in REO and foreclosure) (averaged over the preceding
six
month period), as a percentage of the aggregate of the Class Principal Balances
of the Classes of Subordinate Certificates related to such Loan Group on such
Distribution Date, does not equal or exceed 50% and (ii) cumulative
Realized Losses with respect to all of the Mortgage Loans in such Loan Group
do
not exceed:
·
for
any Distribution Date on or after the tenth anniversary of the first
Distribution Date, 30% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
·
for
any Distribution Date on or after the eleventh anniversary of the
first
Distribution Date, 35% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
·
for
any Distribution Date on or after the twelfth anniversary of the
first
Distribution Date, 40% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date,
·
for
any Distribution Date on or after the thirteenth anniversary of the
first
Distribution Date, 45% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing Date,
and
·
for
any Distribution Date on or after the fourteenth anniversary of the
first
Distribution Date, 50% of the aggregate Class Principal Balance of
the
related Subordinate Certificates as of the Closing
Date.
50
“Subcontractor”:
Any
vendor, subcontractor or other Person that is not responsible for the overall
servicing (as “servicing” is commonly understood by participants in the
mortgage-backed securities market) of Mortgage Loans but performs one or more
discrete functions identified in Item 1122(d) or Regulation AB with respect
to
Mortgage Loans under the direction or authority of a Servicer or related
Subservicer.
“Subordinate
Adjusted Cap Rate”:
With
respect to any Distribution Date and the Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates,
the
weighted average of the Group 1 Adjusted Cap Rate and the Group 2 Adjusted
Cap
Rate (computed for this purpose without regard to the adjustment applicable
to
the Insured Certificates),
weighted on the basis of the Subordinate Components for Loan Group 1 and Loan
Group 2.
“Subordinate
Adjusted Net WAC”:
With
respect to any Distribution Date, the weighted average of the Group 1 Adjusted
Net WAC and Group 2 Adjusted Net WAC for such Distribution Date, weighted on
the
basis of the Subordinate Component for Loan Group 1 and Loan Group 2 for such
Distribution Date.
“Subordinate
Certificate”:
Any of
the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class
B-7,
Class B-8, Class B-9, Class B-10, Class B-11 or Class B-12
Certificates.
“Subordinate
Class Expense Share”:
For
each Class of Subordinate Certificates and each Accrual Period, the Subordinate
Class Expense Share shall be allocated in reverse order of their respective
numerical Class designations (beginning with the Class of Subordinate
Certificates with the highest numerical Class designation) and will be an amount
equal to (i) the sum of, without duplication, (a) the amounts paid to the
Trustee from the Trust Fund during such Accrual Period pursuant to Section
8.05
hereof to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Loan Rate of any Mortgage
Loan
and (b) amounts described in clause (y) of the definition of Available Funds
herein to the extent such amounts were paid for ordinary or routine expenses
and
were not taken into account in computing the Net Mortgage Rate of any Mortgage
Loan minus
(ii)
amounts taken into account under clause (i) of this definition in determining
the Subordinate Class Expense Share of any Class of Subordinate Certificates
having a higher numeric designation. In no event, however, shall the Subordinate
Class Expense Share for any Class of Subordinate Certificates and any Accrual
Period exceed the product of (i) (a) the lesser of the Pass-Through Rate for
such Class or the applicable Adjusted Cap Rate, divided
by
(b) 12
and (ii) the Class Certificate Principal Amount of such Class of Subordinate
Certificates as of the beginning of the related Accrual Period.
“Subordinate
Component”:
With
respect to each Loan Group and any Distribution Date, the excess of the sum
of
the related Pool Collateral Balance for such Distribution Date over the
aggregate Class Principal Balance and Component Principal Balance of the related
Senior Certificate Group and Principal-Only Component immediately preceding
such
Distribution Date.
51
“Subordinate
Net WAC”:
With
respect to any Distribution Date, the weighted average of the Group 1 Net WAC
and the Group 2 Net WAC for such Distribution Date, calculated without regard
to
any insurance premium rate and weighted on the basis of the Subordinate
Components for Loan Group 1 and Loan Group 2 for such Distribution
Date.
“Subordinate
Net WAC Cap”:
With
respect to the Subordinate Certificates and any Distribution Date, the product
of (i) the Subordinate Net WAC for such Distribution Date multiplied
by
(ii) the
quotient of 30 divided
by
the
actual number of days in the Accrual Period.
“Subordinate
Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Percentage for such Loan Group on such Distribution
Date; provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to the Senior Certificates and Principal-Only Components related
to
a Loan Group, the Subordinate Percentage will represent the entire interest
of
the Subordinate Certificates in the Mortgage Loans and will equal the difference
between 100% and the related Senior Percentage for such Distribution
Date.
“Subordinate
Prepayment Percentage”:
With
respect to each Loan Group and any Distribution Date, the difference between
100% and the related Senior Prepayment Percentage for such Distribution
Date.
“Subordinate
Principal Distribution Amount”:
With
respect to each Loan Group and any Distribution Date, an amount equal to the
sum
of:
(1) the
related Subordinate Percentage of all amounts described in clauses (a) through
(d) of the definition of “Principal Distribution Amount” for that Loan Group and
Distribution Date;
(2) with
respect to each Mortgage Loan in such Loan Group that became a Liquidated
Mortgage Loan during the related Prepayment Period, the amount of the Net
Liquidation Proceeds allocable to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the definition
of
“Senior Principal Distribution Amount” for that Loan Group and Distribution
Date, up to the related Subordinate Percentage of the Stated Principal Balance
of such Mortgage Loan; and
(3) the
related Subordinated Prepayment Percentage of all amounts described in clause
(f) and (g) of the definition of “Principal Distribution Amount” for such Loan
Group and Distribution Date;
provided,
however,
that on
any Distribution Date occurring after a Senior Termination Date has occurred
with respect to the Senior Certificates and Principal-Only Component related
to
one Loan Group, the Subordinate Principal Distribution Amount will not be
calculated by that Loan Group but will equal the amount calculated pursuant
to
the formula set forth above based on the Subordinate Percentage or Subordinate
Prepayment Percentage, as applicable, for such Distribution Date with respect
to
all the Mortgage Loans rather than the Mortgage Loans in the related Loan
Group.
52
“Subservicer”:
Any
Person that services Mortgage Loans on behalf of a Servicer or any Subservicer
and is responsible for the performance (whether directly or through Subservicers
or Subcontractors) of a substantial portion of the material servicing functions
require to be performed by a Servicer under the applicable Servicing Agreement
that are identified in Item 1122(d) of Regulation AB.
“Substitution
Adjustment”:
As
defined in Section 2.03(d) hereof.
“Tax
Returns”:
The
federal income tax return on Internal Revenue Service Form 1066, U.S. Real
Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q
thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable
Income or Net Loss Allocation, or any successor forms, to be filed on behalf
of
every REMIC created hereunder under the REMIC Provisions, together with any
and
all other information reports or returns that may be required to be furnished
to
the Certificateholders or filed with the Internal Revenue Service or any other
governmental taxing authority under any applicable provisions of federal, state
or local tax laws.
“Termination
Price”:
As
defined in Section 10.01(a) hereof.
“Transfer”:
Any
direct or indirect transfer or sale of any Ownership Interest in a Residual
Certificate.
“Transfer
Affidavit”:
As
defined in Section 6.02(e)(ii) hereof.
“Transferee”:
Any
Person who is acquiring by Transfer any Ownership Interest in a
Certificate.
“Trust”:
HarborView Mortgage Loan Trust 2006-1, the trust created hereunder.
“Trust
Fund”:
The
segregated pool of assets subject hereto, constituting the primary trust created
hereby and to be administered hereunder, with respect to which a REMIC election
is to be made, such Trust Fund consisting of: (i) such Mortgage Loans as
from time to time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon and proceeds
thereof, excluding Prepayment Penalty Amounts in respect of Group 1 and Group
2
Mortgage Loans, (ii) any REO Property, together with all collections
thereon and proceeds thereof, (iii) the Trustee’s rights with respect to
the Mortgage Loans under all insurance policies required to be maintained
pursuant to this Agreement and any proceeds thereof, (iv) the Depositor’s
rights under the Mortgage Loan Purchase Agreement (including any security
interest created thereby); (v) the Distribution Account (subject to the
last sentence of this definition), any REO Account and such assets that are
deposited therein from time to time and any investments thereof, together with
any and all income, proceeds and payments with respect thereto; (vi) all
right, title and interest of the Seller in and to the Servicing Agreement;
(vii) the Basis Risk Reserve Fund; (viii) the Financial Guaranty
Insurance Policy and (ix) all proceeds of the foregoing. Notwithstanding the
foregoing, however, the Trust Fund specifically excludes (1) all payments
and other collections of interest and principal due on the Mortgage Loans on
or
before the applicable Cut-off Date and principal received before the applicable
Cut-off Date (except any principal collected as part of a payment due after
the
applicable Cut-off Date) and (2) all income and gain realized from
Permitted Investments of funds on deposit in the Distribution
Account.
53
“Trustee”:
U.S.
Bank National Association, its successors and assigns, or any successor trustee
appointed as provided herein.
“Trustee
Certification”:
A
certification of the Trustee substantially in the form of Exhibit
P.
“Trustee
Fee”:
The
monthly fee payable to the Trustee for its services rendered under this
Agreement calculated at the Trustee Fee Rate of the outstanding Principal
Balance of each Mortgage Loan as of the first day of the related Due
Period.
“Trustee
Fee Rate”:
0.0005% per annum.
“Two
Times Test”:
As to
any Distribution Date, a test that will be satisfied if all of the following
conditions are satisfied: (i) the Aggregate Subordinate Percentage is at least
two times the Aggregate Subordinate Percentage as of the Closing Date; (ii)
the
outstanding Principal Balance of all Mortgage Loans in such Loan Group 60 days
or more Delinquent (including related Mortgage Loans in REO and foreclosure)
(averaged over the preceding six month period), as a percentage of the aggregate
of the Class Principal Balances of the Classes of Subordinate Certificates
related to such Loan Group on such Distribution Date, does not equal or exceed
50%; and (iii) on or after the Distribution Date in February 2009, cumulative
Realized Losses do not exceed 30% of the Original Subordinated Principal Balance
or prior to the Distribution Date in February 2009, cumulative Realized Losses
do not exceed 20% of the Original Subordinated Principal Balance.
“Undercollateralized
Group”:
With
respect to any Distribution Date and any Loan Group, as to which the aggregate
Class Principal Balance and Component Principal Balance of the related classes
of Senior Certificates and Principal-Only Component, after giving effect to
distributions pursuant to Section 5.01(a) on such date, is greater than the
Loan
Group Balance of the related Loan Group for such Distribution Date.
“Underwriter”:
Greenwich Capital Markets, Inc.
“Underwriter’s
Exemption”:
Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374),
as
amended by Prohibited Transaction Exemption 97-34 (Exemption Application Nos.
D-10245 and D-10246), as amended by Prohibited Transaction Exemption 2000-58
(Exemption Application No. D-10829) and as amended by Prohibited Transaction
Exemption 2002-41 (Exemption Application No. D-11077) (or any successor
thereto), or any substantially similar administrative exemption granted by
the
U.S. Department of Labor.
“Uninsured
Cause”:
Any
cause of damage to a Mortgaged Property such that the complete restoration
of
such property is not fully reimbursable by the hazard insurance policies
required to be maintained on such Mortgaged Property.
54
“United
States Person”
or
“U.S.
Person”:
A
“United States person” within the meaning set forth in Section 7701(a)(30)
of the Code or successor provisions.
“Unpaid
Interest Shortfall Amount”:
With
respect to each Class of Certificates (other than the Class PO Certificates
and
Class A-R-II Certificate) and (i) the first Distribution Date, zero, and
(ii) any Distribution Date after the first Distribution Date, the amount, if
any, by which (1)(a) the Monthly Interest Distributable Amount for that Class
for the immediately preceding Distribution Date exceeds (b) the aggregate amount
distributed on that Class in respect of such Monthly Interest Distributable
Amount on the preceding Distribution Date plus (2) any such shortfalls remaining
unpaid from prior Distribution Dates.
“Upper
Tier REMIC”:
As
described in the Preliminary Statement.
“Value”:
With
respect to any Mortgage Loan and the related Mortgaged Property, the lesser
of:
(i) the
value
of such Mortgaged Property as determined by an appraisal made for the originator
of the Mortgage Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Fannie Mae and Freddie 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 Fannie Mae and Freddie Mac.
“Voting
Rights”:
The
portion of the voting rights of all of the Certificates which is allocated
to
any Certificate. 97% of the voting rights shall be allocated among the Classes
of Regular Certificates (other than the Interest-Only Certificates and the
Class
A-R Certificate), pro
rata,
based
on a fraction, expressed as a percentage, the numerator of which is the Class
Principal Balance of such Class and the denominator of which is the aggregate
of
the Class Principal Balances then outstanding, 1% of the voting rights shall
be
allocated to the Class X-1 Certificates, 1% of the voting rights shall be
allocated to the Class X-2A1B Certificates and 1% of the voting rights shall
be
allocated to the Class A-R Certificate; provided,
however,
that
when none of the Regular Certificates is outstanding, 100% of the voting rights
shall be allocated to the Holder of the Class A-R Certificate. The voting rights
allocated to a Class of Certificates shall be allocated among all Holders of
such Class, pro
rata,
based
on a fraction the numerator of which is the Certificate Principal Balance or
Certificate Notional Balance, as applicable, of each Certificate of such Class
and the denominator of which is the Class Principal Balance or Class Notional
Balance, as applicable, of such Class; provided,
however,
that
any Certificate registered in the name of the Trustee or any of its affiliates
shall not be included in the calculation of Voting Rights. No voting rights
shall be allocated to the Class A-R-II Certificate.
55
“Writedown
Amount”:
The
reduction described in Section 5.03(c).
“X-1
Required Reserve Fund Deposit”:
With
respect to the Class X-1 Certificates and any Distribution Date, an amount
equal
to the lesser of (i) the Interest Distributable Amount for the Class X-1
Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest and after any reduction in the
Interest Distributable Amount due to Net Interest Shortfalls on such
Distribution Date) and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund X-1 Subaccount up to an amount equal to the
Basis
Risk Shortfalls for such Distribution Date with respect to the Class 1-A1A,
Class 1-A1B, Class 2-A1A and Class 2-A1C Certificates and the Subordinate
Certificates.
“X-2A1B
Required Reserve Fund Deposit”:
With
respect to the Class X-2A1B Certificates and any Distribution Date, an amount
equal to the lesser of (i) the Interest Distributable Amount for the Class
X-2A1B Certificates for such Distribution Date (after giving effect to such
Certificate’s share of any Net Deferred Interest and after any reduction in the
Interest Distributable Amount due to Net Interest Shortfalls on such
Distribution Date) and (ii) the amount required to bring the balance on deposit
in the Basis Risk Reserve Fund X-2A1B Subaccount up to an amount equal to the
Basis Risk Shortfalls for such Distribution Date with respect to the Class
2-A1B
Certificates.
SECTION
1.02. Accounting.
Unless
otherwise specified herein, for the purpose of any definition or calculation,
whenever amounts are required to be netted, subtracted or added or any
distributions are taken into account such definition or calculation and any
related definitions or calculations shall be determined without duplication
of
such functions.
ARTICLE
II
CONVEYANCE
OF MORTGAGE LOANS;
ORIGINAL
ISSUANCE OF CERTIFICATES
SECTION
2.01. Conveyance
of Mortgage Loans.
(a) The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, assign, set over and otherwise convey to the Trustee without recourse
for the benefit of the Certificateholders and the Certificate Insurer all the
right, title and interest of the Depositor, including any security interest
therein for the benefit of the Depositor, in and to (i) each Mortgage Loan
identified on the Mortgage Loan Schedule, including the related Cut-off Date
Principal Balance, all interest due thereon after the Cut-off Date and all
collections in respect of interest and principal due after the Cut-off Date;
(ii) all the Depositor’s right, title and interest in and to the Distribution
Account and all amounts from time to time credited to and the proceeds of the
Distribution Account; (iii) any real property that secured each such Mortgage
Loan and that has been acquired by foreclosure or deed in lieu of foreclosure;
(iv) the Depositor’s interest in any insurance policies in respect of the
Mortgage Loans; (v) all proceeds of any of the foregoing and (vi) all other
assets included or to be included in the Trust Fund. Such assignment includes
all interest and principal due to the Depositor after the Cut-off Date with
respect to the Mortgage Loans. In exchange for such transfer and assignment,
the
Depositor shall receive the Certificates.
56
It
is
agreed and understood by the Depositor, the Seller and the Trustee that it
is
not intended that any Mortgage Loan be included in the Trust Fund that is a
“High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective
as of November 27, 2003, or The Home Loan Protection Act of New Mexico,
effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as
defined in the Massachusetts Predatory Home Loan Practices Act, effective as
of
November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as
defined in the Indiana High Cost Home Loan Act, effective as of January 1,2005.
Concurrently
with the execution and delivery of this Agreement, the Depositor does hereby
assign to the Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the Servicing
Agreement to the extent assigned in the Mortgage Loan Purchase Agreement. The
Trustee hereby accepts such assignment, and shall be entitled to exercise all
rights of the Depositor under the Mortgage Loan Purchase Agreement and all
rights of the Seller under the Servicing Agreement as if, for such purpose,
it
were the Depositor or the Seller, as applicable, including the Seller’s right to
enforce remedies for breaches of representations and warranties and delivery
of
Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over,
deposit and conveyance does not and is not intended to result in creation or
assumption by the Trustee of any obligation of the Depositor, the Seller or
any
other Person in connection with the Mortgage Loans or any other agreement or
instrument relating thereto except as specifically set forth
herein.
In
connection with such transfer and assignment, (i) the Depositor directs the
Trustee to appoint The Bank of New York as Custodian, and (ii) the Seller,
on
behalf of the Depositor, does hereby deliver on the Closing Date, unless
otherwise specified in this Section 2.01 or the BONY Custodial Agreement, to,
and deposit with the Trustee, or the Custodian as its designated agent, the
following documents or instruments with respect to each Mortgage Loan (a
“Mortgage
File”)
so
transferred and assigned:
(i)
the
original Mortgage Note, endorsed either on its face or by allonge
attached
thereto in blank or in the following form: “Pay to the order of U.S. Bank
National Association, as Trustee for HarborView Mortgage Loan Trust
2006-1, Mortgage Loan Pass-Through Certificates, Series 2006-1, without
recourse”, or with respect to any lost Mortgage Note, an original Lost
Note Affidavit stating that the original mortgage note was lost,
misplaced
or destroyed, together with a copy of the related Mortgage Note;
provided,
however,
that such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-off
Date Principal Balance of which is less than or equal to 2% of the
Cut-off
Date Collateral Balance;
(ii)
except
as provided below, for each Mortgage Loan that is not a MERS Mortgage
Loan, the original Mortgage, and in the case of each MERS Mortgage
Loan,
the original Mortgage, noting the presence of the MIN for that Mortgage
Loan and either language indicating that the Mortgage Loan is a MOM
Loan
if the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was
not a MOM
Loan at origination, the original Mortgage and the assignment to
MERS, in
each case with evidence of recording thereon, and the original recorded
power of attorney, if the Mortgage was executed pursuant to a power
of
attorney, with evidence of recording thereon or, if such Mortgage
or power
of attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not
otherwise available, a copy of such Mortgage or power of attorney,
as the
case may be, together with an Officer’s Certificate of the Seller
certifying that the copy of such Mortgage delivered to the Trustee
(or its
Custodian) is a true copy and that the original of such Mortgage
has been
forwarded to the public recording office, or, in the case of a Mortgage
that has been lost, a copy thereof (certified as provided for under
the
laws of the appropriate jurisdiction) and a written Opinion of Counsel
(delivered at the Seller’s expense) acceptable to the Trustee and the
Depositor that an original recorded Mortgage is not required to enforce
the Trustee’s interest in the Mortgage
Loan;
57
(iii)
the
original of each assumption, modification or substitution agreement,
if
any, relating to the Mortgage Loans, or, as to any assumption,
modification or substitution agreement which cannot be delivered
on or
prior to the Closing Date because of a delay caused by the public
recording office where such assumption, modification or substitution
agreement has been delivered for recordation, a photocopy of such
assumption, modification or substitution agreement, pending delivery
of
the original thereof, together with an Officer’s Certificate of the
Seller, title company, escrow agent or closing attorney certifying
that
the copy of such assumption, modification or substitution agreement
delivered to the Trustee (or its Custodian) on behalf of the Trust
is a
true copy and that the original of such agreement has been forwarded
to
the public recording office;
(iv)
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original Assignment of Mortgage, in form and substance acceptable
for
recording. The Mortgage shall be assigned to “U.S. Bank National
Association, as Trustee for HarborView Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series 2006-1, without
recourse;”
(v)
in
the case of each Mortgage Loan that is not a MERS Mortgage Loan,
an
original copy of any intervening Assignment of Mortgage showing a
complete
chain of assignments, or, in the case of an intervening Assignment
of
Mortgage that has been lost, a written Opinion of Counsel (delivered
at
the Seller’s expense) acceptable to the Trustee that such original
intervening Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage
Loans;
(vi)
the
original Primary Insurance Policy, if any, or certificate, if
any;
(vii)
the
original or a certified copy of lender’s title insurance policy;
and
(viii)
with
respect to any Cooperative Loan, the Cooperative Loan
Documents.
58
In
connection with the assignment of any MERS Mortgage Loan, the Seller agrees
that
it will take (or shall cause the Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee, such actions as are
necessary to cause the MERS(R)
System
to indicate that such Mortgage Loans have been assigned by the Seller to the
Trustee in accordance with this Agreement for the benefit of the
Certificateholders by including (or deleting, in the case of Mortgage Loans
that
are repurchased in accordance with this Agreement) in such computer files the
information required by the MERS(R) System to identify the series of the
Certificates issued in connection with the transfer of such Mortgage Loans
to
the HarborView Mortgage Loan Trust 2006-1.
With
respect to each Cooperative Loan the Seller, on behalf of the Depositor does
hereby deliver to the Trustee the related Cooperative Loan Documents and the
Seller will take (or cause the Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee, such actions as are
necessary under applicable law (including but not limited to the relevant UCC)
in order to perfect the interest of the Trustee in the related Mortgaged
Property.
Assignments
of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage
Loan (other than a Cooperative Loan) shall be recorded; provided,
however,
that
such assignments need not be recorded if, in the Opinion of Counsel (which
must
be from Independent Counsel and not at the expense of the Trust or the Trustee)
acceptable to the Trustee and each Rating Agency, recording in such states
is
not required to protect the Trustee’s interest in the related Mortgage Loans;
provided,
further,
notwithstanding the delivery of any Opinion of Counsel, each assignment of
Mortgage shall be submitted for recording by the Seller (or the Seller will
cause the Servicer to submit each such assignment for recording), at the cost
and expense of the Seller, in the manner described above, at no expense to
the
Trust or Trustee, upon the earliest to occur of (1) reasonable direction by
the
Majority Certificateholders, (2) the occurrence of a bankruptcy or insolvency
relating to the Seller or the Depositor, or (3) with respect to any one
Assignment of Mortgage, the occurrence of a bankruptcy, insolvency or
foreclosure relating to the Mortgagor under the related Mortgage. Subject to
the
preceding sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays are caused
by the applicable recording office), the Seller shall properly record (or the
Seller will cause the Servicer to properly record), at the expense of the Seller
(with the cooperation of the Depositor and the Trustee (or the Custodian on
behalf of the Trustee)), in each public recording office where the related
Mortgages are recorded, each assignment referred to in Section 2.01(v) above
with respect to a Mortgage Loan that is not a MERS Mortgage Loan.
If
the
original lender’s title insurance policy, or a certified copy thereof, was not
delivered pursuant to Section 2.01(x) above, the Seller shall deliver or cause
to be delivered to the Trustee the original or a copy of a written commitment
or
interim binder or preliminary report of title issued by the title insurance
or
escrow company, with the original or a certified copy thereof to be delivered
to
the Trustee, promptly upon receipt thereof, but in any case within 175 days
of
the Closing Date. The Seller shall deliver or cause to be delivered to the
Trustee, promptly upon receipt thereof, any other documents constituting a
part
of a Mortgage File received with respect to any Mortgage Loan sold to the
Depositor by the Seller, including, but not limited to, any original documents
evidencing an assumption or modification of any Mortgage Loan.
59
For
Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date
and prior to the Closing Date, in lieu of the Seller delivering the above
documents, the Servicer shall deliver to the Trustee, or to the Custodian on
behalf of the Trustee, prior to the first Distribution Date, an Officer’s
Certificate, which shall include a statement to the effect that all amounts
received in connection with such prepayment that are required to be deposited
in
the Distribution Account have been so deposited. All original documents that
are
not delivered to the Trustee on behalf of the Trust shall be held by the
Servicer in trust for the Trustee, for the benefit of the Trust and the
Certificateholders.
All
original documents that are not delivered to the Custodian on behalf of the
Trust shall be held by the Servicer in trust for the Trustee, for the benefit
of
the Trust and the Certificateholders.
The
Depositor herewith delivers to the Trustee an executed copy of the Mortgage
Loan
Purchase Agreement.
SECTION
2.02. Acceptance
by Trustee.
The
Trustee, by execution and delivery hereof, acknowledges receipt by it or by
the
Custodian on its behalf of the Mortgage Files pertaining to the Mortgage Loans
listed on the Mortgage Loan Schedule, subject to review thereof by the Custodian
on behalf of the Trustee and declares that it holds or will hold all other
assets included in the definition of “Trust Fund” in trust for the exclusive use
and benefit of all present and future Certificateholders and the Certificate
Insurer.
The
Trustee (or the Custodian, on behalf of the Trustee) shall execute and deliver
to the Depositor on or prior to the Closing Date an acknowledgment of receipt
of
the original Mortgage Note (with any exceptions noted), substantially in the
form attached as Exhibit G-1 hereto.
The
Trustee (or the Custodian on behalf of the Trustee) shall, for the benefit
of
the Certificateholders and the Certificate Insurer, review each Mortgage File
delivered to it and to certify and deliver to the Depositor, the Seller and
each
Rating Agency an interim certification in substantially the form attached hereto
as Exhibit G-2, within 90 days after the Closing Date (or, with respect to
any
document delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within five Business Days after
the assignment thereof) that, as to each Mortgage Loan listed in the Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in the exception report annexed thereto as not being
covered by such certification), (i) all documents required to be delivered
to it pursuant to Section 2.01 of this Agreement are in its possession,
(ii) such documents have been reviewed by it and have not been mutilated,
damaged or torn and relate to such Mortgage Loan and (iii) based on its
examination and only as to the foregoing, the information set forth in the
Mortgage Loan Schedule that corresponds to items (i), (ii) and (iii) of the
Mortgage Loan Schedule accurately reflects information set forth in the Mortgage
File. It is herein acknowledged that, in conducting such review, the Trustee
and
the Custodian on its behalf are under no duty or obligation to inspect, review
or examine any such documents, instruments, certificates or other papers to
determine that they are genuine, enforceable, or appropriate for the represented
purpose or that they have actually been recorded or that they are other than
what they purport to be on their face.
60
No
later
than 180 days after the Closing Date, the Trustee (or the Custodian on behalf
of
the Trustee) shall deliver to the Depositor and the Seller a final certification
in the form annexed hereto as Exhibit G-3 evidencing the completeness of the
Mortgage Files, with any applicable exceptions noted thereon.
Upon
the
discovery by the Seller or the Depositor (or upon receipt by the Trustee of
written notification of such breach) of a breach of any of the representations
and warranties made by the Seller in the Mortgage Loan Purchase Agreement in
respect of any Mortgage Loan that materially adversely affects such Mortgage
Loan or the interests of the related Certificateholders or the Certificate
Insurer in such Mortgage Loan, the party discovering such breach shall give
prompt written notice to the other parties to this Agreement.
The
Depositor and the Trustee intend that the assignment and transfer herein
contemplated constitute a sale of the Mortgage Loans, the related Mortgage
Notes
and the related documents, conveying good title thereto free and clear of any
liens and encumbrances, from the Depositor to the Trustee and that such property
not be part of the Depositor’s estate or property of the Depositor in the event
of any insolvency by the Depositor. In the event that such conveyance is deemed
to be, or to be made as security for, a loan, the parties intend that the
Depositor shall be deemed to have granted and does hereby grant to the Trustee
a
first priority perfected security interest in all of the Depositor’s right,
title and interest in and to the Mortgage Loans, the related Mortgage Notes
and
the related documents, and that this Agreement shall constitute a security
agreement under applicable law.
SECTION
2.03. Repurchase
or Substitution of Mortgage Loans by the Originator and the
Seller.
(a) Upon
its
discovery or receipt of written notice of any materially defective document
in,
or that a document is missing from, a Mortgage File or of the breach by the
Originator of any representation, warranty or covenant under the Purchase
Agreement in respect of any Mortgage Loan which materially adversely affects
the
value of that Mortgage Loan or the interest therein of the Certificateholders
or
the Certificate Insurer, the Trustee shall promptly notify the Originator of
such defect, missing document or breach and request that the Originator deliver
such missing document or cure such defect or breach within 90 days from the
date
that the Originator was notified of such missing document, defect or breach,
and
if the Originator does not deliver such missing document or cure such defect
or
breach in all material respects during such period, the Trustee shall enforce
the Originator’s obligation under the Purchase Agreement and cause the
Originator to repurchase that Mortgage Loan from the Trust Fund at the
Repurchase Price (as defined in the Purchase Agreement) on or prior to the
Determination Date following the expiration of such 90 day period. It is
understood and agreed that the obligation of the Originator to cure or to
repurchase or to substitute for (or, with respect to any costs and damages
incurred by the Trust Fund in connection with any violation of any
anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage Loan
as
to which a document is missing, a material defect in a constituent document
exists or as to which such a breach has occurred and is continuing shall
constitute the sole remedy against the Originator respecting such omission,
defect or breach available to the Trustee on behalf of the
Certificateholders.
61
(b) Upon
discovery or receipt of written notice of the breach by the Seller of any
representation, warranty or covenant under the Mortgage Loan Purchase Agreement
or in Section 2.04 or Section 2.08 hereof in respect of any Mortgage Loan
which materially adversely affects the value of that Mortgage Loan or the
interest therein of the Certificateholders or the Certificate Insurer, the
Trustee (or the Custodian on behalf of the Trustee) shall promptly notify the
Seller of such breach and request that the Seller cure such breach within 90
days from the date that the Seller was notified of such breach, and if the
Seller does not cure such breach in all material respects during such period,
the Trustee shall enforce the Seller’s obligation under the Mortgage Loan
Purchase Agreement and cause the Seller to repurchase that Mortgage Loan from
the Trust Fund at the Purchase Price on or prior to the Determination Date
following the expiration of such 90 day period (subject to Section 2.03(e)
below); provided,
however,
that, in
connection with any such breach that could not reasonably have been cured within
such 90 day period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed thereafter
diligently and expeditiously to cure the same within the additional period
provided under the Mortgage Loan Purchase Agreement; and, provided
further,
that,
in the case of the breach of any representation, warranty or covenant made
by
the Seller in Section 2.04 hereof, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans for the Purchase Price or, if
the
Mortgage Loan or the related Mortgaged Property acquired with respect thereto
has been sold, then the Seller shall pay, in lieu of the Purchase Price, any
excess of the Purchase Price over the Net Liquidation Proceeds received upon
such sale.
(c) The
Purchase Price or Repurchase Price (as defined in the Servicing Agreement)
for a
Mortgage Loan purchased or repurchased under this Section 2.03 or such other
amount due shall be deposited in the Distribution Account on or prior to the
next Determination Date after the Originator’s or Seller’s obligation to
repurchase such Mortgage Loan arises. Upon receipt of the related deposit in
the
Distribution Account, the Trustee shall cause the Custodian to release to the
Originator or Seller, as applicable, the related Mortgage File and shall execute
and deliver such instruments of transfer or assignment, in each case without
recourse, representation or warranty, as the Originator or Seller, as
applicable, shall furnish to it and as shall be necessary to vest in the
Originator or Seller, as applicable, any Mortgage Loan released pursuant hereto
and the Trustee and the Custodian shall have no further responsibility with
regard to such Mortgage File (it being understood that the Trustee and Custodian
shall have no responsibility for determining the sufficiency of such assignment
for its intended purpose). In lieu of repurchasing any such Mortgage Loan as
provided above, the Seller may cause such Mortgage Loan to be removed from
the
Trust Fund (in which case it shall become a Deleted Mortgage Loan) and
substitute one or more Qualified Substitute Mortgage Loans in the manner and
subject to the limitations set forth in Section 2.03(d) below. It is understood
and agreed that the obligation of the Seller to cure or to repurchase or to
substitute for (or, with respect to any costs and damages incurred by the Trust
Fund in connection with any violation of any anti-predatory or anti-abusive
lending laws, indemnify for) any Mortgage Loan as to which a document is
missing, a material defect in a constituent document exists or as to which
such
a breach has occurred and is continuing shall constitute the sole remedy against
the Seller respecting such omission, defect or breach available to the Trustee
on behalf of the Certificateholders.
62
(d) Notwithstanding
anything to the contrary set forth above, with respect to any breach by the
Seller of a representation or warranty made by the Seller herein or in the
Mortgage Loan Purchase Agreement that materially and adversely affects the
value
of a Mortgage Loan or the Mortgage Loans or the interest therein of the
Certificateholders or the Certificate Insurer, if the Seller would not be in
breach of such representation or warranty but for a breach by the Originator
of
a representation and warranty made by the Originator in the Servicing Agreement,
then the Originator thereunder, in the manner and to the extent set forth
therein, and not the Seller, shall be required to remedy such breach.
In
addition to such repurchase or substitution obligation, the Seller shall
indemnify the Trust Fund and hold it harmless against any losses, damages,
penalties, fines, forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from any claim, demand,
defense or assertion based on or grounded upon, or resulting from, a breach
of
the Seller’s representations and warranties contained in Section
2.04.
The
Trustee shall enforce the obligations of the Seller under the Mortgage Loan
Purchase Agreement including, without limitation, any obligation of the Seller
to purchase a Mortgage Loan on account of a breach of a representation, warranty
or covenant as described in this Section 2.03(d) and its obligation to indemnify
the Trust Fund with respect to any such breach.
(e) If
pursuant to the provisions of Section 2.03(b), the Seller repurchases or
otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage
Loan, the Seller shall take (or shall cause the Servicer to take), at the
expense of the Seller (with the cooperation of the Depositor and the Trustee),
such actions as are necessary either (i) cause MERS to execute and deliver
an
Assignment of Mortgage in recordable form to transfer the Mortgage from MERS
to
the Seller and shall cause such Mortgage to be removed from registration on
the
MERS(R)
System
in accordance with MERS’ rules and regulations or (ii) cause MERS to designate
on the MERS(R)
System
the Seller or its designee as the beneficial holder of such Mortgage
Loan.
(f) [Reserved]
(g) Any
substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans
made pursuant to Section 2.03(a) above must be effected prior to the last
Business Day that is within two years after the Closing Date. As to any Deleted
Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage
Loan or Loans, such substitution shall be effected by the Seller delivering
to
the Custodian, on behalf of the Trustee, for such Qualified Substitute Mortgage
Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee,
and such other documents and agreements, with all necessary endorsements
thereon, as are required by Section 2.01 hereof, together with an Officers’
Certificate stating that each such Qualified Substitute Mortgage Loan satisfies
the definition thereof and specifying the Substitution Adjustment (as described
below), if any, in connection with such substitution; provided,
however,
that, in
the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage
Loan,
the Seller shall provide such documents and take such other action with respect
to such Qualified Substitute Mortgage Loans as are required pursuant to Section
2.01 hereof. The Custodian, on behalf of the Trustee, shall acknowledge receipt
for such Qualified Substitute Mortgage Loan or Loans and, within five Business
Days thereafter, shall review such documents as specified in Section 2.02 hereof
and deliver to the Servicer, with respect to such Qualified Substitute Mortgage
Loan or Loans, a certification substantially in the form attached hereto as
Exhibit G-2, with any exceptions noted thereon. Within 180 days of the date
of
substitution, the Custodian, on behalf of the Trustee, shall deliver to the
Seller a certification substantially in the form of Exhibit G-3 hereto with
respect to such Qualified Substitute Mortgage Loan or Loans, with any exceptions
noted thereon. Monthly Payments due with respect to Qualified Substitute
Mortgage Loans in the month of substitution are not part of the Trust Fund
and
will be retained by the Seller. For the month of substitution, distributions
to
Certificateholders will reflect the collections and recoveries in respect of
such Deleted Mortgage Loan in the Due Period preceding the month of substitution
and the Depositor or the Seller, as the case may be, shall thereafter be
entitled to retain all amounts subsequently received in respect of such Deleted
Mortgage Loan. The Seller shall give or cause to be given written notice to
the
Certificateholders that such substitution has taken place, shall amend the
Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan
from
the terms of this Agreement and the substitution of the Qualified Substitute
Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan
Schedule to the Trustee. Upon such substitution, such Qualified Substitute
Mortgage Loan or Loans shall constitute part of the Trust Fund and shall be
subject in all respects to the terms of this Agreement and, in the case of
a
substitution effected by the Seller, the Mortgage Loan Purchase Agreement,
including, in the case of a substitution effected by the Seller all
representations and warranties thereof included in the Mortgage Loan Purchase
Agreement and all representations and warranties thereof set forth in Section
2.04 hereof, in each case as of the date of substitution.
63
For
any
month in which the Seller substitutes one or more Qualified Substitute Mortgage
Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and
provide written certification to the Trustee and the Seller as to the amount
(each, a “Substitution
Adjustment”),
if
any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans
exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan,
of
the principal balance thereof as of the date of substitution, together with
one
month’s interest on such principal balance at the applicable Net Loan Rate. On
or prior to the next Determination Date after the Seller’s obligation to
repurchase the related Deleted Mortgage Loan arises, the Seller will deliver
or
cause to be delivered to the Trustee for deposit in the Distribution Account
an
amount equal to the related Substitution Adjustment, if any, and the Custodian,
on behalf of the Trustee, upon receipt of the related Qualified Substitute
Mortgage Loan or Loans, shall release to the Seller the related Mortgage File
or
Files and shall execute and deliver such instruments of transfer or assignment,
in each case without recourse, as the Seller shall deliver to it and as shall
be
necessary to vest therein any Deleted Mortgage Loan released pursuant
hereto.
In
addition, the Seller shall obtain at its own expense and deliver to the Trustee
an Opinion of Counsel to the effect that such substitution (either specifically
or as a class of transactions) will not cause an Adverse REMIC Event. If such
Opinion of Counsel cannot be delivered, then such substitution may only be
effected at such time as the required Opinion of Counsel can be
given.
64
(h) Upon
discovery by the Seller, the Depositor or the Trustee that any Mortgage Loan
does not constitute a “qualified mortgage” within the meaning of Section
860G(a)(3) of the Code, the party discovering such fact shall within two
Business Days give written notice thereof to the other parties. In connection
therewith, the Seller shall repurchase or, subject to the limitations set forth
in Section 2.03(e), substitute one or more Qualified Substitute Mortgage Loans
for the affected Mortgage Loan within 90 days of the earlier of discovery or
receipt of such notice with respect to such affected Mortgage Loan. Any such
repurchase or substitution shall be made in the same manner as set forth in
Section 2.03(b) above, if made by the Seller. The Trustee shall reconvey to
the
Seller the Mortgage Loan to be released pursuant hereto in the same manner,
and
on the same terms and conditions, as it would a Mortgage Loan repurchased for
breach of a representation or warranty.
(i) Notwithstanding
the foregoing, to the extent that any fact, condition or event with respect
to a
Mortgage Loan constitutes a breach of both (i) a representation or warranty
of
the Originator under the applicable Purchase Agreement and (ii) a representation
or warranty of the Seller under this Agreement, in each case, which materially
adversely affects the value of such Mortgage Loan or the interest therein of
the
Certificateholders or the Certificate Insurer, the Trustee shall first request
that the Originator cure such breach or repurchase such Mortgage Loan and if
the
Originator fails to cure such breach or repurchase such Mortgage Loan within
60
days of receipt of such request from the Trustee, the Trustee shall then request
that the Seller cure such breach or repurchase such Mortgage Loans.
SECTION
2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans.
The
Seller hereby makes the following representations and warranties to the Trustee
on behalf of the Certificateholders and the Certificate Insurer as of the
Closing Date with respect to the Mortgage Loans:
(i) Each
Mortgage Loan at the time it was made complied in all material respects with
applicable local, state, and federal laws, including, but not limited to, all
applicable predatory and abusive lending laws.
(ii) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, (as such
terms are defined in the then current Standard & Poor’s LEVELS(R)
Glossary, Appendix E, in effect as of the Closing Date) and
no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003
is
governed by the Georgia Fair Lending Act;
(iii) With
respect to each representation and warranty with respect to any Mortgage Loan
made by the Originator in the Purchase Agreement that is made as of the related
Closing Date (as defined in the Purchase Agreement), to the best of the Seller’s
knowledge, no event has occurred since the related Closing Date (as defined
in
the Purchase Agreement) that would render such representations and warranties
to
be untrue in any material respect as of the Closing Date; and
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(iv) Each
Group 1 Mortgage Loan has an original principal balance that conforms to Freddie
Mac and Fannie Mae guidelines in effect as of the Closing Date.
With
respect to the representations and warranties in this Section 2.04 that are
made
to the best of the Seller’s knowledge or as to which the Seller has no
knowledge, if it is discovered by the Depositor, the Seller, the Certificate
Insurer or the Trustee that the substance of such representation and warranty
is
inaccurate and such inaccuracy materially and adversely affects the value of
the
related Mortgage Loan or the interest therein of the Certificateholders or
the
Certificate Insurer then, notwithstanding the Seller’s lack of knowledge with
respect to the substance of such representation and warranty being inaccurate
at
the time the representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or warranty.
It
is
understood and agreed that the representations and warranties in this Section
2.04 shall survive delivery of the Mortgage Files to the Trustee and shall
inure
to the benefit of the Certificateholders and the Certificate Insurer
notwithstanding any restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Seller, the Certificate Insurer or the
Trustee of a breach of any of the foregoing representations and warranties
which
materially and adversely affects the value of any Mortgage Loan or the interests
therein of the Certificateholders or the Certificate Insurer, the party
discovering such breach shall give prompt written notice to the other parties,
and in no event later than two Business Days from the date of such discovery.
It
is understood and agreed that the obligations of the Seller set forth in Section
2.03(b) hereof to cure, substitute for or repurchase (or, with respect to any
costs and damages incurred by the trust fund in connection with any violation
of
any anti-predatory or anti-abusive lending laws, indemnify for) a related
Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the
sole remedies available to the Certificateholders or to the Trustee on their
behalf respecting a breach of the representations and warranties incorporated
in
this Section 2.04.
SECTION
2.05. [Reserved]
SECTION
2.06. Representations
and Warranties of the Depositor.
The
Depositor represents and warrants to the Trustee on behalf of the
Certificateholders and the Certificate Insurer as follows:
(i) this
agreement constitutes a legal, valid and binding obligation of the Depositor,
enforceable against the Depositor in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors’ rights in general an except as such
enforceability may be limited by general principles of equity (whether
considered in a proceeding at law or in equity);
(ii) immediately
prior to the sale and assignment by the Depositor to the Trustee on behalf
of
the Trust of each Mortgage Loan, the Depositor had good and marketable title
to
each Mortgage Loan (insofar as such title was conveyed to it by the Seller)
subject to no prior lien, claim, participation interest, mortgage, security
interest, pledge, charge or other encumbrance or other interest of any
nature;
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(iii) as
of the
Closing Date, the Depositor has transferred all right, title and interest in
the
Mortgage Loans to the Trustee on behalf of the Trust;
(iv) the
Depositor has not transferred the Mortgage Loans to the Trustee on behalf of
the
Trust with any intent to hinder, delay or defraud any of its creditors;
(v) the
Depositor has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of Delaware, with full corporate power and
authority to own its assets and conduct its business as presently being
conducted;
(vi) the
Depositor is not in violation of its certificate of incorporation or by-laws
or
in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Depositor is a
party or by which it or its properties may be bound, which default might result
in any material adverse changes in the financial condition, earnings, affairs
or
business of the Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the Depositor;
(vii) the
execution, delivery and performance of this Agreement by the Depositor, and
the
consummation of the transactions contemplated hereby, do not and will not result
in a material breach or violation of any of the terms or provisions of, or,
to
the knowledge of the Depositor, constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Depositor is a party or by which the Depositor is bound or to which
any of the property or assets of the Depositor is subject, nor will such actions
result in any violation of the provisions of the certificate of incorporation
or
by-laws of the Depositor or, to the best of the Depositor’s knowledge without
independent investigation, any statute or any order, rule or regulation of
any
court or governmental agency or body having jurisdiction over the Depositor
or
any of its properties or assets (except for such conflicts, breaches, violations
and defaults as would not have a material adverse effect on the ability of
the
Depositor to perform its obligations under this Agreement);
(viii) to
the
best of the Depositor’s knowledge without any independent investigation, no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States or any other
jurisdiction is required for the issuance of the Certificates, or the
consummation by the Depositor of the other transactions contemplated by this
Agreement, except such consents, approvals, authorizations, registrations or
qualifications as (a) may be required under State securities or “blue sky” laws,
(b) have been previously obtained or (c) the failure of which to obtain would
not have a material adverse effect on the performance by the Depositor of its
obligations under, or the validity or enforceability of, this Agreement;
and
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(ix) there
are
no actions, proceedings or investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other tribunal
to
which the Depositor is a party or of which any of its properties is the subject:
(a) which if determined adversely to the Depositor would have a material adverse
effect on the business, results of operations or financial condition of the
Depositor; (b) asserting the invalidity of this Agreement or the Certificates;
(c) seeking to prevent the issuance of the Certificates or the consummation
by
the Depositor of any of the transactions contemplated by this Agreement, as
the
case may be; or (d) which might materially and adversely affect the performance
by the Depositor of its obligations under, or the validity or enforceability
of,
this Agreement.
SECTION
2.07. Issuance
of Certificates.
The
Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery
to it or to the Custodian of the Mortgage Files, subject to the provisions
of
Sections 2.01 and 2.02 hereof, together with the assignment to it of all
other assets included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery and in exchange
therefor, the Trustee, pursuant to the written request of the Depositor executed
by an officer of the Depositor, has caused to be executed, authenticated and
delivered to or upon the order of the Depositor, the Certificates in authorized
denominations. The interests evidenced by the Certificates constitute the entire
beneficial ownership interest in the Trust Fund.
SECTION
2.08. Representations
and Warranties of the Seller.
The
Seller hereby represents and warrants to the Trustee on behalf of the
Certificateholders and the Certificate Insurer that, as of the Closing Date
or
as of such date specifically provided herein:
(i) The
Seller is duly organized, validly existing and in good standing and has the
power and authority to own its assets and to transact the business in which
it
is currently engaged. The Seller is duly qualified to do business and is in
good
standing in each jurisdiction in which the character of the business transacted
by it or properties owned or leased by it requires such qualification and in
which the failure to so qualify would have a material adverse effect on (a)
its
business, properties, assets or condition (financial or other), (b) the
performance of its obligations under this Agreement, or (c) the value or
marketability of the Mortgage Loans.
(ii) The
Seller has the power and authority to make, execute, deliver and perform this
Agreement and to consummate all of the transactions contemplated hereunder
and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official records. When
executed and delivered, this Agreement will constitute the Seller’s legal, valid
and binding obligations enforceable in accordance with its terms, except as
enforcement of such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and the rights of creditors of
federally insured financial institutions and by the availability of equitable
remedies, (2) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law) or (3) public policy
considerations underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this Agreement
which purport to provide indemnification from securities laws
liabilities.
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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.
69
(x) The
Seller did not transfer the Mortgage Loans to the Depositor with any intent
to
hinder, delay or defraud any of its creditors.
(xi) The
Seller acquired title to the Mortgage Loans in good faith, without notice of
any
adverse claims.
(xii) The
transfer, assignment and conveyance of the Mortgage Notes and the Mortgages
by
the Seller to the Depositor are not subject to the bulk transfer laws or any
similar statutory provisions in effect in any applicable
jurisdiction.
SECTION
2.09. Covenants
of the Seller.
The
Seller hereby covenants that, except for the transfer hereunder, the Seller
will
not sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest
therein; the Seller will notify the Trustee, as assignee of the Depositor and
the Certificate Insurer, of the existence of any lien on any Mortgage Loan
immediately upon discovery thereof, and the Seller will defend the right, title
and interest of the Trustee, as assignee of the Depositor, in, to and under
the
Mortgage Loans, against all claims of third parties claiming through or under
the Seller; provided,
however,
that
nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller
from suffering to exist upon any of the Mortgage Loans any liens for municipal
or other local taxes and other governmental charges if such taxes or
governmental charges shall not at the time be due and payable or if the Seller
shall currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with respect
thereto.
ARTICLE
III
ADMINISTRATION
OF
THE MORTGAGE LOANS
SECTION
3.01. Servicing
of the Mortgage Loans.
The
Servicer will service the Mortgage Loans pursuant to the terms of the Servicing
Agreement. The Trustee shall enforce the provisions of the Servicing Agreement
in respect of the Servicer (including any reference to any obligation of the
Servicer in this Agreement that is incorporated into or by which the Servicer
is
bound under the Servicing Agreement).
SECTION
3.02. REMIC-Related
Covenants.
For
as
long as any REMIC created hereunder shall exist, the Trustee shall act in
accordance herewith to assure continuing treatment of such REMIC as a REMIC,
and
the Trustee shall comply with any directions of the Depositor or the Servicer
to
assure such continuing treatment. In particular, the Trustee shall not (a)
sell
or permit the sale of all or any portion of the Mortgage Loans or of any
investment of deposits in an Account unless such sale is as a result of a
repurchase of the Mortgage Loans pursuant to this Agreement or the Trustee
has
received a REMIC Opinion prepared at the expense of the Trust; and (b) other
than with respect to a substitution pursuant to the Mortgage Loan Purchase
Agreement or Section 2.04 of this Agreement, as applicable, accept any
contribution to any REMIC after the Startup Day without receipt of a REMIC
Opinion.
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SECTION
3.03. Release
of Mortgage Files.
(a) Upon
becoming aware of the payment in full of any Mortgage Loan, or the receipt
by
the Servicer of a notification that payment in full has been escrowed in a
manner customary for such purposes for payment to Certificateholders on the
next
Distribution Date, the Servicer will, if required under the Servicing Agreement,
promptly furnish to the Custodian, on behalf of the Trustee, two copies of
a
certification substantially in the form of Exhibit F hereto signed by a
Servicing Officer or in a mutually agreeable electronic format which will,
in
lieu of a signature on its face, originate from a Servicing Officer (which
certification shall include a statement to the effect that all amounts received
in connection with such payment that are required to be deposited in the
Servicing Account maintained by the Servicer the Servicing Agreement have been
or will be so deposited) and shall request that the Trustee or the Custodian
on
behalf of the Trustee deliver to the Servicer the related Mortgage File. Upon
receipt of such certification and request, the Trustee shall cause the Custodian
to promptly release the related Mortgage File to the Servicer and the Trustee
and the Custodian shall have no further responsibility with regard to such
Mortgage File. Upon any such payment in full, the Servicer is authorized, to
give, as agent for the Trustee, as the mortgagee under the Mortgage that secured
the Mortgage Loan, an instrument of satisfaction (or assignment of mortgage
without recourse) regarding the Mortgaged Property subject to the Mortgage,
which instrument of satisfaction or assignment, as the case may be, shall be
delivered to the Person or Persons entitled thereto against receipt therefor
of
such payment, it being understood and agreed that no expenses incurred in
connection with such instrument of satisfaction or assignment, as the case
may
be, shall be chargeable to the Servicing Account.
(b) From
time
to time and as appropriate for the servicing or foreclosure of any Mortgage
Loan
and in accordance with the Servicing Agreement, the Trustee shall execute such
documents as shall be prepared and furnished to the Trustee by the Servicer
(in
form reasonably acceptable to the Trustee) and as are necessary to the
prosecution of any such proceedings. The Trustee shall cause the Custodian,
upon
the request of the Servicer, and upon delivery to the Trustee (or the Custodian,
on behalf of the Trustee) of two copies of a request for release signed by
a
Servicing Officer substantially in the form of Exhibit F (or in a mutually
agreeable electronic format which will, in lieu of a signature on its face,
originate from a Servicing Officer), release the related Mortgage File held
in
its possession or control to the Servicer. Such trust receipt shall obligate
the
Servicer to return the Mortgage File to the Custodian when the need therefor
by
the Servicer no longer exists unless the Mortgage Loan shall be liquidated,
in
which case, upon receipt of a certificate of a Servicing Officer similar to
that
hereinabove specified, the Mortgage File shall be released by the Custodian,
to
the Servicer.
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SECTION
3.04. REO
Property.
(a) In
the
event the Trust (or the Trustee, on behalf of the Trust), acquires ownership
of
any REO Property in respect of any related Mortgage Loan, the deed or
certificate of sale shall be issued to the Trust, or if required under
applicable law, to the Trustee, or to its nominee, on behalf of the Trust.
The
Servicer shall, to the extent provided in the Servicing Agreement, sell any
REO
Property as expeditiously as possible (and in no event later than three years
after acquisition) and in accordance with the provisions of this Agreement
and
the Servicing Agreement, as applicable. Pursuant to its efforts to sell such
REO
Property, the Servicer shall protect and conserve such REO Property in the
manner and to the extent required by the Servicing Agreement, in accordance
with
the REMIC Provisions and in a manner that does not result in a tax on “net
income from foreclosure property” or cause such REO Property to fail to qualify
as “foreclosure property” within the meaning of Section 860G(a)(8) of the
Code.
(b) The
Servicer shall, to the extent required by the Servicing Agreement, deposit
all
funds collected and received in connection with the operation of any REO
Property in the Servicing Account.
(c) To
the
extent provided in the Servicing Agreement, the Liquidation Proceeds from the
final disposition of the REO Property, net of any payment to the Servicer as
provided above shall be deposited in the Servicing Account on or prior to the
applicable Determination Date in the month following receipt thereof and be
remitted by wire transfer in immediately available funds to the Trustee for
deposit into the Distribution Account on the next succeeding Servicer Remittance
Date.
SECTION
3.05. Reports
Filed with Securities and Exchange Commission.
(a) The
Depositor shall prepare or cause to be prepared the initial current report
on
Form 8-K. The Trustee will prepare and file Current Reports on Form 8-K in
respect of the Trust at the direction and expense of the Depositor, provided
that, the Depositor, the Seller or the Servicer shall have timely notified
the
Trustee of an item reportable on Form 8-K (unless such item is specific to
the
Trustee, in which case the Trustee will be deemed to have notice) and shall
have
delivered to the Trustee not later than three (3) Business Days prior to the
filing deadline for such Form 8-K, all information, signatures, data and
exhibits required to be provided or filed with such Form 8-K. The Trustee shall
not be responsible for determining what information is required to be filed
on a
Form 8-K in connection with the transactions contemplated by this Agreement
(unless such event is specific to the Trustee, in which case the Trustee will
be
responsible for causing such Form 8-K to be filed) and shall not be liable
for
any late filing of a Form 8-K in the event that it does not receive all
information, data, signatures and exhibits required to be provided or filed
on
or prior to the third Business Day prior to the applicable filing deadline.
(b) Within
10
days (or, if applicable, within such shorter period of time as is required
under
the rules of the Commission as in effect from time to time (the “Rules”))
following each Distribution Date, the Trustee shall, in accordance with industry
standards and the Rules, prepare and file with the Commission via the Electronic
Data Gathering and Retrieval System (“EDGAR”)
a Form
10-D that includes (i) a Distribution Date Statement, (ii) such other
information provided to the Trustee as is required by Form 10-D, including,
but
not limited to, the information required by Item 1121 of Regulation AB and
(iii)
such other information required to be included on Form 10-D furnished to the
Trustee by the Depositor or any other party , provided
that
such information is furnished to the Trustee no later than three (3) Business
Days prior to the date on which the such Form 10-D is required to be filed
(the
related “Filing Date”) pursuant to the Rules. The Trustee shall have no
responsibility for determining what information is required to be filed on
Form
10-D (unless such information is specific to the Trustee, in which case the
Trustee will be responsible for making such determination) nor for including
any
information in such Form 10-D that is not furnished to the Trustee no later
than
three (3) Business Days prior to the Filing Date.
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(c) No
later
than January 30, 2007, the Trustee shall, in accordance with industry standards,
file a Form 15 Suspension Notice with respect to the Trust, if applicable.
(d) Prior
to
(i) March 30, 2007, or such earlier date as such filing may be required to
be
made under the rules of the Commission and (ii) unless and until a Form 15
Suspension Notice shall have been filed, March 30, or such earlier date as
such
filing may be required to be made under the rules of the Commission, of each
year thereafter, the Trustee shall file a Form 10-K, in substance conforming
to
industry standards, with respect to the Trust. Such Form 10-K shall include
(w)
the Sarbanes-Oxley Certification and any other documentation provided by the
Servicer pursuant to the Servicing Agreement which is required to be filed
with
such Form 10-K, to the extent they have been timely delivered to the Trustee
and
the Depositor, (x) the annual certifications and assessments of compliance
delivered by the Trustee, the Servicer and the Custodian, or any Subservicer
or
Subcontractor thereof, pursuant to this Agreement, the Servicing Agreement
and
the Custodial Agreement, (y) the related public accounting firm attestation
reports and (z) such other information as is required by the Rules and
Regulation AB. The Trustee shall not be responsible for determining what
information is required to be filed on a Form 10-K in connection with the
transactions contemplated by this Agreement and shall not be liable for the
late
filing of a Form 10-K or for the expenses for filing an amendment to a Form
10-K
in the event that it does not receive (i) the documents required to be delivered
to it in accordance with clauses (x)-(z) above or (ii) an executed copy of
the
Form 10-K from the Depositor within the time period described herein. In the
event that the Trustee is unable to include any report required by either clause
(x) or (y) in the immediately preceding sentence in the Form 10-K, the Trustee
shall disclose such fact in the Form 10-K together with an explanation as to
why
such report is not included as an exhibit to the Form 10-K.
(e) The
Trustee shall promptly send copies of each periodic report filed on Form 10-D
or
other applicable form, each annual report on Form 10-K, and each Form 15
Suspension Notification, together in each case with the acceptance confirmation
receipt from EDGAR, to the Certificate Insurer, to McKee Nelson LLP and to
the
Depositor (i) by e-mail to the e-mail addresses provided in writing by each
of
McKee Nelson LLP and the Depositor, respectively and (ii) to McKee Nelson LLP
at
1919 M Street, N.W., Washington, D.C.20036, and to the Depositor at the address
specified in Section 12.05, in each case to the attention of a designated
contact specified by each of McKee Nelson LLP and the Depositor, respectively.
Notwithstanding any term to the contrary, an appropriate officer of the
Depositor shall be responsible for signing, and shall sign, any such Form 10-K
and the related Sarbanes-Oxley Certification that may be required to be filed
with the Commission in connection therewith. The Trustee shall prepare such
Form
10-K and provide the Depositor with such Form 10-K not later than March
20th
of the
applicable year. Following its receipt thereof, the Depositor shall execute
such
Form 10-K and all related certifications to be signed by it and provide the
original of such Form 10-K and all related certifications to the Trustee not
later than March 25th
of that
year (or if March 25th
is not a
Business Day, then the next succeeding Business Day); provided,
however,
that if
the filing of such Form 10-K shall be required to occur on a date earlier than
March 30th
of the
applicable year as may be required by the Exchange Act, and Rules and
Regulations of the Commission, then the time periods for preparation and
execution of such Form 10-K set forth in this section shall be adjusted
accordingly. The Depositor agrees to promptly furnish to the Trustee, from
time
to time upon request, such further information, reports and financial statements
within its control related to this Agreement and the Mortgage Loans as the
Trustee reasonably deems appropriate to prepare and file all necessary reports
with the Commission. The Trustee shall have no liability with respect to any
failure to properly prepare or file such periodic reports resulting from or
relating to the Trustee’s inability or failure to obtain any information not
resulting from the Trustee’s own negligence or willful misconduct. The Trustee
shall have no responsibility to execute any Form 15 Suspension Notice, Form
8-K,
Form 10-D or Form 10-K described herein or to execute any Depositor
Certification described herein, or to file any items other than those specified
in this Section 3.05; provided,
however,
the
Trustee will cooperate with the Depositor in connection with any additional
filings with respect to the Trust as the Depositor deems necessary under the
Exchange Act. Copies of all reports filed by the Trustee under Regulation AB,
the Exchange Act or otherwise shall be sent to the Depositor. Fees and expenses
incurred by the Trustee in connection with this Section 3.05 shall not be
reimbursable from the Trust.
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(f) Not
later
than March 15 of each year (beginning in 2007) (or, if such day is not a
Business Day, the immediately preceding Business Day), the Trustee shall sign
the Trustee Certification for the benefit of the Depositor and its officers,
directors and affiliates.
SECTION
3.06. [Reserved]
SECTION
3.07. Indemnification
by the Trustee.
(a) The
Trustee agrees to indemnify the Depositor, its officers, directors, agents
and
employees for, and to hold them harmless against, any losses, damages,
penalties, fines, forfeitures, legal fees and expenses and related costs,
judgments, and any other costs, fees and expenses (except as otherwise provided
herein with respect to expenses) (including reasonable legal fees and
disbursements of counsel) incurred on their part (i) in connection with, arising
out of, or relating to the Trustee’s failure to file a Form 8-K, Form 10-D or
Form 10-K in accordance with Section 3.05 or any failure by the Trustee to
deliver any information, report or certification, when and as required under
Section 8.01(b) or (e), (ii) by reason of the Trustee’s willful misfeasance, bad
faith or negligence in the performance of such obligations pursuant to Section
3.05, (iii) by reason of the Trustee’s reckless disregard of such obligations
pursuant to Section 3.05 or (iv) any material misstatement or omission made
in
the Trustee Certification; provided,
in each
case, that with respect to any such claim or legal action (or pending or
threatened claim or legal action), such indemnified Person shall have given
the
Trustee written notice thereof promptly after such indemnified Person shall
have
with respect to such claim or legal action knowledge thereof; provided,
however,
that
such agreement by the Trustee to indemnify and hold harmless such Person shall
not include or apply to any such losses, damages, penalties, fines, forfeitures,
legal fees or expenses or related costs, judgments, or any other costs, fees
or
expenses arising from, caused by or resulting from the actions or omissions
of
any Person other than the Trustee, including without limitation the negligence,
willful misfeasance, bad faith or reckless disregard of duties or obligations
under or pursuant to this Agreement, the Servicing Agreement or other applicable
agreement by the Depositor or the Servicer, including without limitation any
erroneous, inaccurate or incomplete information or certification provided to
the
Trustee by the Depositor or the Servicer in connection with, or any failure
or
delay on the part of the Depositor or the Servicer to provide any information
or
certification necessary to, the Trustee’s performance under Section 3.05. If the
indemnification provided for in this Section 3.07 is unavailable or insufficient
to hold harmless such indemnified Persons, then the Trustee shall contribute
to
the amount paid or payable by such indemnified Persons as a result of the
losses, claims, damages or liabilities of such indemnified Persons in such
proportion as is appropriate to reflect the relative fault of the Depositor
on
the one hand and the Trustee on the other. This indemnity shall survive the
resignation or removal of the Trustee and the termination of this Agreement.
Notwithstanding the foregoing, in no event shall the Trustee be liable for
any
consequential, indirect or punitive damages.
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(b) The
Trust
Fund will indemnify any Indemnified Person for any loss, liability or expense
of
any Indemnified Person not otherwise referred to in Subsection (a)
above.
ARTICLE
IV
ACCOUNTS
SECTION
4.01. Servicing
Accounts
(a) The
Servicer will establish and maintain one or more custodial accounts (the
“Servicing
Accounts”)
in
accordance with the Servicing Agreement, with records to be kept with respect
thereto on a Mortgage Loan by Mortgage Loan basis, into which accounts shall
be
deposited within 48 hours (or as of such other time specified in the Servicing
Agreement) of receipt all collections of principal and interest on any Mortgage
Loan and with respect to any REO Property received by the Servicer, including
Principal Prepayments, Insurance Proceeds, Liquidation Proceeds, Recoveries
and
advances made from the Servicer’s own funds (less, in the case of the Servicer,
the Servicing compensation, in whatever form and amounts as permitted by the
Servicing Agreement) and all other amounts to be deposited in the Servicing
Account. The Servicer is hereby authorized to make withdrawals from and deposits
to the Servicing Account for purposes required or permitted by this Agreement
and the Servicing Agreement. For the purposes of this Agreement, Servicing
Accounts shall also include such other accounts as the Servicer maintains for
the escrow of certain payments, such as taxes and insurance, with respect to
certain Mortgaged Properties. The Servicing Agreement sets forth the criteria
for the segregation, maintenance and investment of each related Servicing
Account, the contents of which are acceptable to the parties hereto as of the
date hereof and changes to which shall not be made unless such changes are
made
in accordance with the provisions of Section 12.01 hereof.
75
(b) [Reserved];
(c) To
the
extent provided in the Servicing Agreement and subject to this Article IV,
on or
before each Servicer Remittance Date, the Servicer shall withdraw or shall
cause
to be withdrawn from the related Servicing Account and shall immediately remit
or cause to be remitted to the Trustee for deposit into the Distribution
Account, amounts representing the following collections and payments (other
than
with respect to principal of or interest on the Mortgage Loans due on or before
the Cut-off Date) with respect to each of the Mortgage Loans it is
servicing:
(i) Monthly
Payments on the Mortgage Loans received or any related portion thereof advanced
by the Servicer pursuant to the Servicing Agreement which were due on or before
the related Due Date, net of the amount thereof comprising the Servicing Fees
and Lender-Paid Mortgage Insurance Fees, if any;
(ii) Principal
Prepayments in full and any Liquidation Proceeds received by the Servicer with
respect to such Mortgage Loans in the related Prepayment Period, with interest
to the date of prepayment or liquidation, net of the amount thereof comprising
the Servicing Fees;
(iii) Principal
Prepayments in part received by the Servicer for such Mortgage Loans in the
related Prepayment Period;
(iv) Recoveries
received by the Servicer with respect to such Mortgage Loans; and
(v) any
amount to be used as a delinquency advance or to pay any Interest Shortfalls,
in
each case, as required to be paid under the Servicing Agreement.
(d) Withdrawals
may be made from a Servicing Account only to make remittances as provided in
Section 4.01(c), to reimburse the Servicer for advances which have been
recovered by subsequent collection from the related Mortgagor, to remove amounts
deposited in error, to remove fees, charges or other such amounts deposited
on a
temporary basis, or to clear and terminate the account at the termination of
this Agreement in accordance with Section 10.01. As provided in Section 4.01(c),
certain amounts otherwise due to the Servicer may be retained by them and need
not be remitted to the Trustee.
SECTION
4.02. Distribution
Account.
(a) The
Trustee shall establish and maintain an account, for the benefit of the
Certificateholders and the Certificate Insurer, as a segregated account which
shall be an Eligible Account (the “Distribution
Account”).
The
Trustee shall, promptly upon receipt from the Servicer on the Servicer
Remittance Date deposit into the Distribution Account and retain on deposit
until the related Distribution Date, the following amounts:
76
(i) any
amounts withdrawn from a Servicing Account pursuant to Section
4.01(c);
(ii) any
amounts required to be deposited by the Trustee with respect to the Mortgage
Loans pursuant to this Agreement;
(iii) the
Purchase Price with respect to any Mortgage Loans purchased by the Seller or
the
Originator under this Agreement or the Purchase Agreement, as applicable, any
Substitution Adjustments pursuant to Section 2.03 of this Agreement and all
proceeds of any Mortgage Loans or property acquired with respect thereto
repurchased by the Servicer pursuant to Section 10.01 and the Servicing
Agreement;
(iv) any
amounts required to be deposited by the Trustee with respect to losses on
investments of deposits in the Distribution Account; and
(v) any
other
amounts so required to be deposited in the Distribution Account pursuant to
this
Agreement.
(b) All
amounts deposited to the Distribution Account shall be held by the Trustee
in
trust for the benefit of the Certificateholders and the Certificate Insurer
in
accordance with the terms and provisions of this Agreement. The requirements
for
crediting the Distribution Account shall be exclusive, it being understood
and
agreed that, without limiting the generality of the foregoing, payments in
the
nature of (i) late payment charges or assumption fees, tax service fees,
statement account charges or payoff charges, substitution, satisfaction, release
and other like fees and charges and (ii) the items enumerated in Subsections
4.03(a)(i), (ii), (iii), (iv), (vi), (vii), (x) and (xi) with respect to the
Servicer, need not be remitted by the Servicer to the Trustee. In the event
that
the Servicer has remitted to the Trustee any amount not required to be credited
to the Distribution Account, the Servicer may at any time, by delivery of a
written request signed by a Servicing Officer of the deposited in error, direct
the Trustee to withdraw such amount from the Distribution Account for repayment
to the Servicer. In the event that the Trustee has deposited to the Distribution
Account any amount not required to be credited thereto, it may at any time,
withdraw such amount from the Distribution Account.
(c) Funds
in
the Distribution Account shall, if invested, be invested in Permitted
Investments; provided,
however,
that
the Trustee shall be under no obligation or duty to invest (or otherwise pay
interest on) amounts held in the Distribution Account. All Permitted Investments
shall mature or be subject to redemption or withdrawal no later than one
Business Day prior to the next succeeding Distribution Date (except that if
such
Permitted Investment is an obligation of the Trustee, then such Permitted
Investment shall mature not later than such applicable Distribution Date).
Any
and all investment earnings from any such Permitted Investment shall be for
the
benefit of the Trustee and shall be subject to its withdrawal or order from
time
to time, and shall not be part of the Trust Fund. The risk of loss of moneys
required to be distributed to the Certificateholders resulting from such
investments shall be borne by and be the risk of the Trustee. The Trustee shall
deposit the amount of any such loss in the Distribution Account immediately
as
realized, but in no event later than the related Distribution Date.
77
SECTION
4.03. Permitted
Withdrawals and Transfers from the Distribution Account.
(a) The
Trustee shall, from time to time, withdraw or transfer funds from the
Distribution Account to the Servicer, to the Certificate Insurer or to itself
for the following purposes:
(i) to
reimburse the Servicer for any Advance of its own funds, the right of the
Servicer to reimbursement pursuant to this subclause (i) being limited to
amounts received on a particular Mortgage Loan (including, for this purpose,
the
Purchase Price therefor, Insurance Proceeds, Liquidation Proceeds and the
Termination Price) which represent late payments or recoveries of the principal
of or interest on such Mortgage Loan respecting which such Advance was
made;
(ii) to
reimburse the Servicer from Insurance Proceeds or Liquidation Proceeds relating
to a particular Mortgage Loan for amounts expended by the Servicer in good
faith
in connection with the restoration of the related Mortgaged Property which
was
damaged by an Uninsured Cause or in connection with the liquidation of such
Mortgage Loan;
(iii) to
reimburse the Servicer from Insurance Proceeds relating to a particular Mortgage
Loan for insured expenses incurred with respect to such Mortgage Loan and to
reimburse the Servicer from Liquidation Proceeds from a particular Mortgage
Loan
for Liquidation Expenses incurred with respect to such Mortgage Loan;
(iv) to
pay
the Servicer, as appropriate, from Liquidation Proceeds or Insurance Proceeds
received in connection with the liquidation of any Mortgage Loan, the amount
which the Servicer would have been entitled to receive under subclause (xii)
of
this Subsection 4.03(a) as servicing compensation on account of each defaulted
scheduled payment on such Mortgage Loan if paid in a timely manner by the
related Mortgagor;
(v) to
pay
the Servicer from the Purchase Price for any Mortgage Loan, the amount which
the
Servicer would have been entitled to receive under subclause (xii) of this
Subsection 4.03(a) as servicing compensation;
(vi) to
reimburse the Servicer for servicing related advances of funds, the right to
reimbursement pursuant to this subclause being limited to amounts received
on
the related Mortgage Loan (including, for this purpose, the Purchase Price
therefor, Insurance Proceeds and Liquidation Proceeds) which represent late
recoveries of the payments for which such servicing advances were
made;
(vii) to
reimburse the Servicer for any Advance after a Realized Loss has been allocated
with respect to the related Mortgage Loan if the Advance has not been reimbursed
pursuant to clauses (i) and (vi);
(viii) to
pay
the Servicer its monthly Servicing Fee and any other servicing compensation
payable pursuant to the Servicing Agreement;
(ix) to
pay
the Trustee any investment income;
78
(x) [reserved];
(xi) to
reimburse or pay the Servicer any such amounts as are due thereto under the
Servicing Agreement and have not been retained by or paid to the Servicer,
to
the extent provided in the Servicing Agreement;
(xii) to
reimburse the Trustee for expenses, costs and liabilities incurred by or
reimbursable to it pursuant to Sections 7.02(d), 8.05, 8.10 or 8.17 (including
those related the BONY Custodial Agreement, to pay any fees, expenses or other
amounts payable to the Bank of New York as Custodian);
(xiii) to
pay
the Certificate Insurer its Aggregate Premium Amount;
(xiv) to
remove
amounts deposited in error; and
(xv) to
clear
and terminate the Distribution Account pursuant to Section 10.01.
(b) The
Trustee shall keep and maintain separate accounting, for the purpose of
accounting for any payments or reimbursements from the Distribution Account
pursuant to subclauses (i) through (vii), inclusive and subclause (x) or with
respect to any such amounts which would have been covered by such subclauses
had
the amounts not been retained by the Trustee without being deposited in the
Distribution Account under Section 4.02(b).
(c) On
each
Distribution Date, the Trustee shall withdraw funds on deposit in the
Distribution Account to the extent of the aggregate Available Funds and
distribute such funds to the Holders of the Certificates and any other parties
entitled thereto, in accordance with Section 5.01.
(a) On
or
prior to the Closing Date, the Trustee shall cause to be established and
maintained the Policy Account, into which amounts received by the Trustee
pursuant to the Financial Guaranty Insurance Policy shall be deposited for
the
benefit of the Insured Certificates. Amounts on deposit in the Policy Account
shall not be invested and shall not be held in an interest-bearing
account.
(b) As
soon
as possible, and in no event later than 12:00 noon New York time on the second
Business Day immediately preceding any Distribution Date, the Trustee shall
furnish the Certificate Insurer and the Servicer with a completed Notice in
the
form set forth as Exhibit A to the Endorsement to the Financial Guaranty
Insurance Policy in the event that there is a Deficiency Amount with respect
to
the Holders of the Insured Certificates, on such Distribution Date; provided,
however,
that if
such Distribution Date is the Final Distribution Date, the Notice shall also
include the outstanding Class Principal Balances of the Insured Certificates,
after giving effect to all payments of principal on each Class of Insured
Certificates on such Final Distribution Date, other than pursuant to the
Financial Guaranty Insurance Policy. The Notice shall specify the amount of
Insured Amounts for the each Class of Insured Certificate and shall constitute
a
claim for an Insured Amount pursuant to the Financial Guaranty Insurance Policy.
79
(c) Upon
receipt of an Insured Amount from the Certificate Insurer on behalf of the
Holders of the Insured Certificates, the Trustee shall deposit such Insured
Amount into the Policy Account. All such amounts on deposit in the Policy
Account shall remain uninvested.
The
Trustee shall include on each Distribution Date any Insured Amounts received
by
it from or on behalf of the Certificate Insurer for such Distribution Date
(i)
in the amount distributed to the Holders of the Insured Certificates pursuant
to
Section 5.01 and (ii) in the amount deemed to have been distributed to the
Class
1-A1B and Class 2-A1C regular interests and deposited for their benefit into
the
Distribution Account. If on any Distribution Date the Trustee determines that
the Certificate Insurer has paid more under the Financial Guaranty Insurance
Policy than is required by the terms thereof, the Trustee shall promptly return
the excess amount to the Certificate Insurer.
(d) The
Trustee shall (i) receive as attorney-in-fact of the Holders of the Insured
Certificates any Insured Amount delivered to it by the Certificate Insurer
for
payment to such Holders and (ii) distribute such Insured Amount to such Holders
as set forth in Section 5.01. Insured Amounts disbursed by the Trustee from
proceeds of the Financial Guaranty Insurance Policy shall not be considered
payment by the Trust Fund with respect to the Insured Certificates, nor shall
such disbursement of Insured Amounts discharge the obligations of the Trust
Fund
with respect to the amounts thereof, and the Certificate Insurer shall become
owner of such amounts to the extent covered by such Insured Amounts as the
deemed assignee of such Holders. The Trustee hereby agrees on behalf of the
Holders of the Insured Certificates (and each such Holder, by its acceptance
of
its Insured Certificates, hereby agrees) for the benefit of the Certificate
Insurer that, to the extent the Certificate Insurer pays any Insured Amount,
either directly or indirectly (as by paying through the Trustee), to any Holder
of an Insured Certificates, the Certificate Insurer will be entitled to be
subrogated to any rights of such Holder to receive the amounts for which such
Insured Amount was paid, to the extent of such payment, and will be entitled
to
receive the Certificate Insurer Reimbursement Amount as set forth in Section
5.01. The Trustee as attorney-in-fact of the Holders of the Insured Certificates
shall assign to the Certificate Insurer the rights of such Holder with respect
to the Class 1-A1B and Class 2-A1C Certificates to the extent of such Insured
Amount until the Certificate Insurer has been fully reimbursed therefore in
accordance with the terms of the Financial Guaranty Insurance Policy. To
evidence such subrogation, the Trustee shall note the Certificate Insurer’s
rights as subrogee upon the register of Certificateholders upon receipt from
the
Certificate Insurer of proof of payment of any Insured Amount.
(e) At
the
end of the Term of the Financial Guaranty Insurance Policy (as defined in the
Financial Guaranty Insurance Policy), the Trustee shall return the Financial
Guaranty Insurance Policy to the Certificate Insurer for
cancellation.
80
ARTICLE
V
FLOW
OF FUNDS
SECTION
5.01. Distributions.
(a) On
each
Distribution Date and after making any withdrawals from the Distribution Account
pursuant to Section 4.03(a), the Trustee shall withdraw funds on deposit in
the
Distribution Account to the extent of Available Funds for each Loan Group for
such Distribution Date and, make the following disbursements and transfers
as
set forth below:
(i) the
Available Funds for Loan Group 1 shall be distributed on each Distribution
Date
(other than on the Distribution Date following the optional purchase of the
Mortgage Loans by the Servicer) in the following order of priority:
(A)
to
the Class A-R, Class 1-A1A and Class 1-A1B Certificates, the related
Interest Distributable Amounts for that date and to the Class X-1
Certificates, the portion of its Interest Distributable Amount
allocable
to Loan Group 1 based on the Class X-1 Loan Group 1 Percentage,
pro
rata
(based on the Interest Distributable Amount to which each such
Class is
entitled); provided,
however,
that on each Distribution Date, the related Interest Distributable
Amount
for the Class X-1 Certificates up to the X-1 Required Reserve Fund
Deposit
shall be deposited in the Basis Risk Reserve Fund X-1 Subaccount
and shall
not be distributed to the Class X-1 Certificates;
and
(B)
an
amount equal to the Senior Principal Distribution Amount for Loan
Group 1
for that date, as follows:
first,
to the
Class A-R Certificate, until the Class Principal Balance of such Class is
reduced to zero;
second,
to the
Class 1-A1A and Class 1-A1B Certificates, pro
rata based
on
their respective Class Principal Balances, until the Class Principal Balances
of
such Classes are reduced to zero; and
third,
to the
Class PO-1 Certificates and PO-1A1 Component, pro
rata based
on
their Class Principal Balance and Component Principal Balance, respectively,
until the Class Principal Balance or Component Principal Balance, respectively,
of such Class or Component is reduced to zero;
(ii) the
Available Funds for Loan Group 2 shall be distributed on each Distribution
Date
(other than on the Distribution Date following the optional purchase of the
Mortgage Loans by the Servicer) in the following order of priority:
81
(A)
to
the Class 2-A1A, Class 2-A1B, Class 2-A1C and Class X-2A1B Certificates,
the related Interest Distributable Amounts for that date and to
the Class
X-1 Certificates, the portion of its Interest Distributable Amount
allocable to Loan Group 2 based on the Class X-1 Loan Group 2 Percentage,
pro
rata
(based on the Interest Distributable Amount to which each such
Class is
entitled); provided,
however,
that on each Distribution Date, the related Interest Distributable
Amount
for the Class X-1 Certificates up to the X-1 Required Reserve Fund
Deposit
shall be deposited in the Basis Risk Reserve Fund X-1 Subaccount
and shall
not be distributed to the Class X-1 Certificates and the related
Interest
Distributable Amount for the Class X-2A1B Certificates up to the
X-2A1B
Required Reserve Fund Deposit shall be deposited in the Basis Risk
Reserve
Fund X-2A1B Subaccount and shall not be distributed to the Class
X-2A1B
Certificates; and
(B)
an
amount equal to the Senior Principal Distribution Amount for Loan
Group 2
for that date, as follows:
first,
to the
Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates, pro
rata
based on
their respective Class Principal Balances, until the Class Principal Balances
of
such Classes are reduced to zero; and
second,
to the
Class PO-1 and Class PO-2A1B Certificates and PO-1A2 Component, pro
rata based
on
their Class Principal Balance and Component Principal Balance, respectively,
until the Class Principal Balance or Component Principal Balance, respectively,
of such Class or Component is reduced to zero;
On
any
Distribution Date, if the aggregate amount distributed with respect to the
Class
X-1 Certificates from both Loan Groups in accordance with the provisions
of
Sections 5.01(a)(i)(A) or 5.01(a)(ii)(A) above is less than the Class X-1
Certificates’ Interest Distributable Amount, then Available Funds from both Loan
Groups remaining after making the distributions in either Section 5.01(a)(i)(A)
or 5.01(a)(ii)(A) above shall be distributed to the Class X-1 Certificates
to
cover that shortfall.
(iii) concurrently,
from (a) the Basis Risk Reserve Fund X-1 Subaccount, to the Class 1-A1A, Class
1-A1B, Class 2-A1A and Class 2-A1C Certificates, pro
rata,
based
on amounts due and (b) the Basis Risk Reserve Fund X-2A1B Subaccount, to the
Class 2-A1B Certificates based on amounts due, any related Basis Risk Shortfall
for each such Class and such Distribution Date remaining unpaid after giving
effect to the distributions specified in subsections (i) and (ii) above in
the
order and priority set forth in Section 5.07 below;
82
(iv) the
Available Funds for each Loan Group remaining after giving effect to the
distributions specified in subsections (i), (ii) and (iii) above shall be
distributed to the Certificate Insurer and the Certificateholders in the
following order of priority:
(A)
to
the Certificate Insurer, any Certificate Insurer Reimbursement Amounts
due
and unpaid;
(B)
to
the Class B-1 Certificates, the related Interest Distributable Amount
for
that date;
(C)
to
the Class B-1 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(D)
to
the Class B-2 Certificates, the related Interest Distributable Amount
for
that date;
(E)
to
the Class B-2 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(F)
to
the Class B-3 Certificates, the related Interest Distributable Amount
for
that date;
(G)
to
the Class B-3 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(H)
to
the Class B-4 Certificates, the related Interest Distributable Amount
for
that date;
(I)
to
the Class B-4 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(J)
to
the Class B-5 Certificates, the related Interest Distributable Amount
for
that date;
(K)
to
the Class B-5 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(L)
to
the Class B-6 Certificates, the related Interest Distributable Amount
for
that date;
83
(M)
to
the Class B-6 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to
zero;
(N)
to
the Class B-7 Certificates, the related Interest Distributable Amount
for
that date; and
(O)
to
the Class B-7 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(P)
to
the Class B-8 Certificates, the related Interest Distributable Amount
for
that date; and
(Q)
to
the Class B-8 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(R)
to
the Class B-9 Certificates, the related Interest Distributable Amount
for
that date; and
(S)
to
the Class B-9 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(T)
to
the Class B-10 Certificates, the related Interest Distributable Amount
for
that date; and
(U)
to
the Class B-10 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(V)
to
the Class B-11 Certificates, the related Interest Distributable Amount
for
that date; and
(W)
to
the Class B-11 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(X)
to
the Class B-12 Certificates, the related Interest Distributable Amount
for
that date; and
(Y)
to
the Class B-12 Certificates, an amount allocable to principal equal
to
their Pro Rata Share for such Distribution Date, until the Class
Principal
Balance of such Class is reduced to zero;
and
(v) from
the
Basis Risk Reserve Fund X-1 Subaccount, to the Class B-1, Class B-2, Class
B-3,
Class B-4, Class B-5, Class B-6, Class B-7, Class B-8, Class B-9, Class B-10,
Class B-11 and Class B-12 Certificates, any related Basis Risk Shortfall for
such Distribution Date in the order and priority set forth in Section 5.07
below; and
84
(vi) the
Available Funds (other than amounts to which the Class A-R-II Certificate is
entitled as a result of early termination of the Trust pursuant to Section
10.01(a)) for each Loan Group remaining after giving effect to the distributions
specified in subsections (i), (ii), (iii), (iv) and (v) above will be
distributed to the Certificateholders in the following order of
priority:
(A)
to
the Holder of the Class A-R Certificate, any Available Funds for
Loan
Group 1 and Loan Group 2, other than any portion thereof in respect
of
Premium Proceeds, then remaining;
and
(B)
on
the final Distribution Date, to the Holder of the Class A-R-II
Certificate, the Premium Proceeds.
On
the
Distribution Date following the optional purchase of the Mortgage Loans by
the
Servicer, Available Funds for Loan Group 1 and Loan Group 2 shall be applied
in
the amounts and in the order specified above, except that no amounts will be
distributed pursuant to Sections 5.01(a)(iii) and (a)(iv) above and the portion
of Available Funds remaining after the distribution pursuant to Sections
5.01(a)(i) and (a)(ii) will be applied in the order specified in Section
5.01(a)(iv).
With
respect to any Distribution Date and any Insured Amount, the Trustee shall
make
distributions pursuant to Section 5.01(a)(i), with respect to the Class 1-A1B
Certificates and Section 5.01(a)(ii), with respect to the Class 2-A1C
Certificates, from the amount drawn under the Financial Guaranty Insurance
Policy for such Distribution Date in respect of such Classes pursuant to Section
4.02 and 4.05(d). Funds received by the Trustee as a result of any claim under
the Financial Guaranty Insurance Policy shall be applied solely to distributions
to the Class 1-A1B and Class 2-A1C Certificateholders, as applicable, and may
not be applied to satisfy any other Classes of Certificates or costs, expenses
or liabilities of the Trustee, the Servicer or the Trust Fund.
(b) Amounts
to be paid to the Holders of a Class of Certificates shall be payable with
respect to all Certificates of that Class, pro
rata,
based
on the Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of that Class.
(c) On
each
Distribution Date, the Monthly Interest Distributable Amounts for the Classes
of
Senior Certificates (other than the Class PO Certificates) and Subordinate
Certificates on such Distribution Date shall be reduced proportionately, based
on (A) in the case of the Senior Certificates (other than the Class PO
Certificates), the Monthly Interest Distributable Amount to which they would
otherwise be entitled and (B) in the case of the Subordinate Certificates,
interest accrued at the related Pass-Through Rate on the related Apportioned
Principal Balance of each such Class, by Net Interest Shortfalls with respect
to
the related Loan Group.
85
(d) Notwithstanding
the priority and allocation set forth in Section 5.01(a)(iv) above, if with
respect to any Class of Subordinate Certificates on any Distribution Date the
sum of the related Class Subordination Percentages of such Class and of all
other Classes of Subordinate Certificates which have a higher numerical Class
designation than such Class (the “Applicable
Credit Support Percentage”)
is
less than the Original Applicable Credit Support Percentage for such Class,
no
distribution of Principal Prepayments will be made to any such Classes (the
“Restricted
Classes”)
and
the amount of such Principal Prepayment otherwise distributable to the
Restricted Classes shall be distributed to any Classes of Subordinate
Certificates having lower numerical Class designations than such Class,
pro
rata,
based
on the Class Principal Balances of the respective Classes immediately prior
to
such Distribution Date and shall be distributed in the sequential order provided
in Section 5.01(a)(iv) above.
(e) On
each
Distribution Date, the Trustee shall distribute to the Holder of the Class
X-1
Certificates, the Class X-1 Distributable Amount.
(f)
Notwithstanding the priority and allocation set forth in Section 5.01(a)(iv),
with respect to any Loan Group, on each Distribution Date prior to the Senior
Credit Support Depletion Date but after the date on which the aggregate Class
Principal Balance of each Class of the Senior Certificates and PO Components
related to a Loan Group have been reduced to zero, 100% of the Principal
Prepayments on the Mortgage Loans (net of Deferred Interest) in that Loan Group
otherwise distributable on each Class of Subordinate Certificates pursuant
to
Section 5.01(a)(iv), in reverse order of priority, shall be distributed as
principal to the Senior Certificates (other than the Interest-Only Certificates)
related to the other Loan Group remaining outstanding in the amounts provided
in
the next succeeding sentence, provided that on such Distribution Date either
clause (i) or (ii) in the definition of the Two Times Test has not been met.
Such amount shall be allocated among the other Loan Groups, pro
rata
based on
aggregate Class Principal Balance of the related Senior Certificates, and paid
to the Senior Certificates in such Group or Groups in the same priority as
such
Certificates would receive other distributions of principal pursuant to Section
5.01(a).
(ii) On
any
Distribution Date on which the Senior Certificates and Principal-Only Component
related to a Loan Group constitute an Undercollateralized Group, all amounts
otherwise distributable as Available Funds on the Subordinate Certificates,
in
reverse order of priority (or, following the Senior Credit Support Depletion
Date, such other amounts described in the immediately following sentence),
will
be distributed as principal to the Senior Certificates and Principal-Only
Component of such Undercollateralized Group pursuant to Section 5.01(a), first,
up to the sum of the Accrued Interest Amount and the Principal Deficiency Amount
for the related Undercollateralized Group (such distribution, an
“Undercollateralization Distribution”) and second, to pay to the Subordinate
Certificates and the Class A-R Certificate in the same order and priority as
provided in Section 5.01(a)(iv). In the event that the Senior Certificates
and
Principal-Only Component related to a Loan Group constitute an
Undercollateralized Group on any Distribution Date following the Senior Credit
Support Depletion Date, Undercollateralization Distributions will be made from
any Available Funds for a Loan Group not related to an Undercollateralized
Group
remaining after all required amounts have been distributed to the related Class
of Senior Certificates and Principal-Only Component. Undercollateralization
Distributions will be applied first to pay accrued but unpaid interest, if
any,
and second to pay principal in the same priority and allocation provided in
Section 5.01(a).
86
(g)Distributions
on Physical Certificates.
The
Trustee shall make distributions in respect of a Distribution Date to each
Certificateholder of record on the related Record Date (other than as provided
in Section 10.01 hereof respecting the final distribution), in the case of
Certificateholders of the Physical Certificates, by check or money order mailed
to such Certificateholder at the address appearing in the Certificate Register,
or by wire transfer. Distributions among Certificateholders of a Class shall
be
made in proportion to the Percentage Interests evidenced by the Certificates
of
that Class held by such Certificateholders.
(h)Distributions
on Book-Entry Certificates.
Each
distribution with respect to a Book-Entry Certificate shall be paid to the
Depository, which shall credit the amount of such distribution to the accounts
of its Depository Participants in accordance with its normal procedures. Each
Depository Participant shall be responsible for disbursing such distribution
to
the Certificate Owners that it represents and to each indirect participating
brokerage firm (a “brokerage firm” or “indirect participating firm”) for which
it acts as agent. Each brokerage firm shall be responsible for disbursing funds
to the Certificate Owners that it represents. All such credits and disbursements
with respect to a Book-Entry Certificate are to be made by the Depository and
the Depository Participants in accordance with the provisions of the
Certificates. None of the Trustee, the Depositor or the Seller shall have any
responsibility therefor.
SECTION
5.02. Allocation
of Net Deferred Interest.
For
any
Distribution Date, the Net Deferred Interest on the Mortgage Loans will be
allocated among the Classes of Certificates (or, with respect to the Class
X
Certificates, the PO Components) in proportion to the excess, if any, for each
such Class of (i) the Monthly Interest Distributable Amount accrued at the
Pass-Through Rate for such Class, over (ii) the amount of the Monthly Interest
Distributable Amount for such Class calculated at the applicable Adjusted Cap
Rate for such Class.
On
each
Distribution Date, any amount of Net Deferred Interest allocable to a Class
of
Certificates (other than the Interest-Only Certificates) on such Distribution
Date will be added as principal to the outstanding Class Principal Balance
of
such Class of Certificates. With respect to the Class X-1 Certificates and
each
Distribution Date, any amount of Net Deferred Interest added to the Principal
Balances of the related Mortgage Loans that is allocated to the Class X-1
Certificates on such Distribution Date will be added as principal to the
outstanding Component Principal Balances of the Class PO-1A1 and Class PO-1A2
Components, as applicable, based upon the amount of Deferred Interest
attributable to the Mortgage Loans in the related Loan Group. With respect
to
the Class X-2A1B Certificates and each Distribution Date, any amount of Net
Deferred Interest added to the Principal Balances of the related Mortgage Loans
that is allocated to the Class X-2A1B Certificates on such Distribution Date
will be added as principal to the outstanding Class Principal Balance of the
Class PO-2A1B Certificates.
87
SECTION
5.03. Allocation
of Realized Losses.
(a) On
or
prior to each Distribution Date, the Trustee shall aggregate the loan-level
information provided by the Servicer with respect to the total amount of
Realized Losses with respect to the Mortgage Loans in each Loan Group for the
related Distribution Date and include such information in the Distribution
Date
Statement.
(b) On
each
Distribution Date, Realized Losses that occurred during the related prepayment
period shall be allocated as follows:
first,
to the
Subordinate Certificates in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinate Certificates with the
highest numerical Class designation) until the Class Principal Balance of each
such Class is reduced to zero; and
second,
(A)
with
respect to such losses related to the Group 1 Mortgage Loans, to
the Class
1-A1A, Class 1-A1B, Class PO-1 and Class A-R Certificates and the
PO-1A1
Component, pro
rata,
until the Class Principal Balance or Component Principal Balance
of each
such Class or Component is reduced to zero; provided,
however,
the Class 1-A1B Certificates will bear the principal portion of all
Realized Losses allocable to the Class 1-A1A Certificates for so
long as
the Class 1-A1B Certificates are outstanding;
and
(B)
with
respect such losses related to the Group 2 Mortgage Loans, to the
Class
2-A1A, Class 2-A1B, Class 2-A1C and Class PO-2 Certificates and the
PO-1A2
Component, pro
rata,
until the Class Principal Balance or Component Principal Balance
of such
Class or Component is reduced to zero; provided,
however,
the Class 2-A1C Certificates will bear the principal portion of all
Realized Losses allocable to the Class 2-A1A and Class 2-A1B Certificates
for so long as the Class 2-A1A and Class 2-A1B Certificates are
outstanding; provided,
further,
the Class 2-A1B Certificates will bear the principal portion of all
Realized Losses allocable to the Class 2-A1A Certificates for so
long as
the Class 2-A1A Certificates are outstanding;
and
(c) The
Class
Principal Balance of the Class of Subordinate Certificates then outstanding
with
the highest numerical Class designation shall be reduced on each Distribution
Date by the amount, if any, by which the aggregate of the Class Principal
Balances of all outstanding Classes of Certificates (after giving effect to
the
distribution of principal and the allocation of Realized Losses on such
Distribution Date) exceeds the aggregate of the Stated Principal Balances of
all
the Mortgage Loans for the following Distribution Date.
88
(d) Any
Realized Loss allocated to a Class of Certificates or any reduction in the
Class
Principal Balance of a Class of Certificates pursuant to Section 5.03(b) or
(c)
shall be allocated among the Certificates of such Class, pro
rata,
in
proportion to their respective Certificate Principal Balances.
(e) Any
allocation of Realized Losses to a Certificate or any reduction in the
Certificate Principal Balance of a Certificate pursuant to Section 5.03(b)
or
(c) shall be accomplished by reducing the Certificate Principal Balance thereof
immediately following the distributions made on the related Distribution Date
in
accordance with the definition of “Certificate Principal Balance.”
SECTION
5.04. Statements.
(a) On
each
Distribution Date, the Trustee shall make available to each Certificateholder,
the Certificate Insurer, the Seller, and each Rating Agency, a statement based,
as applicable, on loan-level information obtained from and the Servicer (the
“Distribution
Date Statement”)
as to
the distributions to be made or made, as applicable, on such Distribution
Date:
(i) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to principal;
(ii) the
amount of the distribution made on such Distribution Date to the Holders of
each
Class of Certificates allocable to interest;
(iii) the
Senior Percentage, Senior Prepayment Percentage, Subordinate Percentage and
Subordinate Prepayment Percentage with respect to each Loan Group for the
following Distribution Date;
(iv) the
aggregate amount of servicing compensation received by the Servicer during
the
related Due Period, the Custodial Fee paid to the Custodian during the related
Due Period and such other customary information as the Trustee deems necessary
or desirable, or which a Certificateholder reasonably requests, to enable
Certificateholders to prepare their tax returns;
(v) the
aggregate amount of Advances for the related Due Period and the amount of
unreimbursed Advances;
(vi) the
Pool
Collateral Balance and the Loan Group Collateral Balance for such Distribution
Date;
(vii) the
Loan
Group Balance and related Net WAC and applicable Net WAC Cap for each Loan
Group
at the Close of Business at the end of the related Due Period;
(viii) for
each
Loan Group, the aggregate Principal Balance of the One-Month MTA Indexed
Mortgage Loans at the Close of Business at the end of the related Due
Period;
89
(ix) [Reserved];
(x) [Reserved];
(xi) for
each
Loan Group, the number, weighted average remaining term to maturity and weighted
average Loan Rate of the related Mortgage Loans as of the related Due
Date;
(xii) the
number and aggregate unpaid principal balance of Mortgage Loans, in the
aggregate and for each Loan Group, (a) 30 to 59 days Delinquent, (b) 60 to
89 days Delinquent, (c) 90 or more days Delinquent, (d) as to which foreclosure
proceedings have been commenced and (e) in bankruptcy, in each case as of the
close of business on the last day of the preceding calendar month;
(xiii) the
book
value of any REO Property as of the Close of Business on the last Business
Day
of the calendar month preceding the Distribution Date, and, cumulatively, the
total number and cumulative principal balance of all REO Properties in each
Loan
Group as of the Close of Business of the last day of the preceding Due
Period;
(xiv) the
aggregate amount of Principal Prepayments with respect to each Loan Group made
during the related Prepayment Period;
(xv) the
aggregate amount of Realized Losses incurred during the related Due Period
for
each Loan Group and the cumulative amount of Realized Losses and the amount
of
Realized Losses, if any, allocated to each Class of Certificates or
Principal-Only Components;
(xvi) the
Class
Principal Balance or Class Notional Balance, as applicable, of each Class of
Certificates and the Apportioned Principal Balances of the Subordinate
Certificates after giving effect to any distributions made thereon, on such
Distribution Date;
(xvii) the
Monthly Interest Distributable Amount and the Interest Distributable Amount
in
respect of each Class of Certificates, for such Distribution Date and the
respective portions thereof, if any, remaining unpaid following the
distributions made in respect of such Certificates on such Distribution
Date;
(xviii) the
aggregate amount of any Net Interest Shortfalls and the Unpaid Interest
Shortfall Amount for such Distribution Date;
(xix) the
Available Funds with respect to each Loan Group;
(xx) the
Pass-Through Rate and Adjusted Cap Rate for each Class of Certificates for
such
Distribution Date;
(xxi) the
aggregate Principal Balance of Mortgage Loans purchased hereunder by the Seller
during the related Due Period, and indicating the relevant section of the
Servicing Agreement, or the Section of this Agreement, as applicable, requiring
or allowing the purchase of each such Mortgage Loan;
90
(xxii) the
amount of any Principal Deficiency Amounts or Accrued Interest Amounts paid
to
an Undercollateralized Group or amounts paid pursuant to Section 5.01(e)(i);
(xxiii) current
Recoveries allocable to each Loan Group;
(xxiv) cumulative
Recoveries allocable to each Loan Group;
(xxv) the
amount of any Basis Risk Shortfall, if any, and the related accrued interest
thereon;
(xxvi) for
each
Loan Group, the amount of Deferred Interest and Net Deferred Interest, if any,
for such Loan Group;
(xxvii) the
amount of Net Deferred Interest, if any, added to the Class Principal Balance
of
the related Certificates;
(xxviii) the
amount of the Certificate Insurer Reimbursement Amount, if any;
(xxix) the
Deficiency Amount, if any, to be paid by the Certificate Insurer;
(xxxi) the
number of mortgage loans and the aggregate principal balance of the mortgage
loans that have negatively amortized in each Loan Group;
(xxxii) the
amount of any payment to the Class X-1 Certificate of any Class X-1 Amortization
Shortfall after any such payment; and
(xxxiii) the
amount of any Class X-1 Distributable Amount.
The
Trustee shall make the Distribution Date Statement (and, at its option, any
additional files containing the same information in an alternative format)
available each month to Certificateholders and the other parties to this
Agreement via the Trustee’s Internet website. The Trustee’s Internet website
shall initially be located at “https://trustinvestorreporting.usbank.com.”
Assistance in using the website can be obtained by calling the Trustee customer
service desk at (800) 934-6802. Parties that are unable to use the above
distribution option are entitled to have a paper copy mailed to them via first
class mail by calling the customer service desk and indicating such. The Trustee
shall have the right to change the way such reports are distributed in order
to
make such distribution more convenient and/or more accessible to the parties,
and the Trustee shall provide timely and adequate notification to all parties
regarding any such change.
In
the
case of information furnished pursuant to subclauses (i) and (ii) above, the
amounts shall be expressed in a separate section of the report as a dollar
amount for each Class for each $1,000 original dollar amount as of the Cut-off
Date.
91
In
addition to the information listed above, such Distribution Date Statement
shall
also include such
other information as is required by Form 10-D, including, but not limited to,
the information required by Item 1121 (Sec. 229.1121) of Regulation
AB.
(b) Within
a
reasonable period of time after the end of each calendar year, the Trustee
shall, upon written request, furnish to the Certificate Insurer and each Person
who at any time during the calendar year was a Certificateholder of a Regular
Certificate, if requested in writing by such Person, such information as is
reasonably necessary to provide to such Person a statement containing the
information set forth in subclauses (i) and (ii) above, aggregated for such
calendar year or applicable portion thereof during which such Person was a
Certificateholder. Such obligation of the Trustee shall be deemed to have been
satisfied to the extent that substantially comparable information shall be
prepared and furnished by the Trustee to Certificateholders pursuant to any
requirements of the Code as are in force from time to time.
(c) On
each
Distribution Date, the Trustee shall supply an electronic tape to Bloomberg
Financial Markets, Inc. in a format acceptable to Bloomberg Financial Markets,
Inc. on a monthly basis, and shall supply an electronic tape to Loan Performance
and Intex Solutions in a format acceptable to Loan Performance and Intex
Solutions on a monthly basis.
SECTION
5.05. Remittance
Reports;Advances.
(a) No
later
than the 10th
calendar
day of each month, the Servicer shall deliver to the Trustee and the Certificate
Insurer by telecopy or electronic mail (or by such other means as the Servicer
and the Trustee may agree from time to time) the Remittance Report with respect
to the Distribution Date. No later than the Close of Business New York time
on
the fifth Business Day prior to such Distribution Date, the Servicer shall
deliver or cause to be delivered to the Trustee in addition to the information
provided on the Remittance Report, such other loan-level information reasonably
available to it with respect to the Mortgage Loans as the Trustee may reasonably
require to perform the calculations necessary to make the distributions
contemplated by Section 5.01. The Trustee shall have no duty or obligation
to
calculate, recompute or verify any information in the Remittance Report or
other
loan level information that it receives from the Servicer.
(b) If
the
Monthly Payment on a Mortgage Loan that was due on a related Due Date and is
delinquent, other than as a result of application of the Relief Act, and for
which the Servicer was required to make an advance pursuant to the Servicing
Agreement, exceeds the amount on deposit in the Distribution Account which
will
be used for an advance with respect to such Mortgage Loan, the Servicer shall,
on the Business Day preceding the Distribution Date, deposit in the Distribution
Account an amount equal to such deficiency, net of the Servicing Fee, for such
Mortgage Loan except to the extent the Servicer determines any such Advance
to
be Nonrecoverable from Liquidation Proceeds, Insurance Proceeds or future
payments on the Mortgage Loan for which such Advance was made. Subject to the
foregoing, the Servicer shall continue to make such Advances through the date
that the Servicer is required to do so under the Servicing Agreement. If the
Servicer determines that an Advance is Nonrecoverable, it shall, on or prior
to
the related Distribution Date, present an Officer’s Certificate to the Trustee
(i) stating that the Servicer elects not to make a Advance in a stated amount
and (ii) detailing the reason it deems the advance to be
Nonrecoverable.
92
SECTION
5.06. [Reserved]
SECTION
5.07. Basis
Risk Reserve Fund.
(a) On
the
Closing Date, the Trustee shall establish and maintain in its name, in trust
for
the benefit of the holders of the MTA and LIBOR Certificates, a Basis Risk
Reserve Fund, into which the Depositor shall deposit $554,517.71,
which
amount is intended to cover the amount of Basis Risk Shortfalls, if any, on
the
first, second and third Distribution Dates. On the third Distribution Date
after
the Closing Date, any interest accrued on such initial deposit and any amounts
remaining from such initial deposit will be distributed to the
Seller.
The
Basis
Risk Reserve Fund will be comprised of two subaccounts: the “Basis Risk Reserve
Fund X-1 Subaccount” and the “Basis Risk Reserve Fund X-2A1B Subaccount” (each,
a “Subaccount”). The Basis Risk Reserve Fund X-1 Subaccount will be held in
trust by the Trustee on behalf of the holders of the Class 1-A1A, Class 1-A1B,
Class 2-A1A and Class 2-A1C Certificates and the Subordinate Certificates.
The
Basis Risk Reserve Fund X-2A1B Subaccount will be held in trust by the Trustee
on behalf of the holders of the Class X-2A1B Certificates. The Basis Risk
Reserve Fund shall be an Eligible Account, and funds on deposit therein shall
be
held separate and apart from, and shall not be commingled with, any other
moneys, including, without limitation, other moneys of the Trustee held pursuant
to this Agreement. The Basis Risk Reserve Fund shall not be an asset of any
REMIC established hereby.
(b) On
each
Distribution Date, (i) Monthly Interest Distributable Amounts that would
otherwise be distributable with respect to the Class X-1 Certificates shall
instead be deposited in the Basis Risk Reserve Fund X-1 Subaccount to the extent
of the X-1 Required Reserve Fund Deposit and (ii) Monthly Interest Distributable
Amounts that would otherwise be distributable with respect to the Class X-2A1B
Certificates shall instead be deposited in the Basis Risk Reserve Fund X-2A1B
Subaccount to the extent of the X-1 Required Reserve Fund Deposit.
(c) On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B and Class 2-A1C Certificates,
the Trustee, shall withdraw from the related Subaccount of the Basis Risk
Reserve Fund the amount of any remaining Basis Risk Shortfall for such Classes
of Certificates, pursuant to Section 5.01(a)(iii). If on any Distribution Date
the amount on deposit in the Basis Risk Reserve Fund is not sufficient to make
a
full distribution of the Basis Risk Shortfall, the Trustee shall withdraw the
entire amount on deposit in the Basis Risk Reserve Fund and distribute such
amount to such Classes of Certificates on a pro
rata
basis
based on the amount of Basis Risk Shortfall due each such Class.
On
any
Distribution Date for which a Basis Risk Shortfall exists with respect to the
Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6, Class B-7,
Class B-8, Class B-9, Class B-10, Class B-11 and Class B-12 Certificates, the
Trustee, after making the distributions described in the immediately preceding
paragraph to the Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B and Class
2-A1C Certificates, shall distribute the lesser of any amounts remaining on
deposit in the Basis Risk Reserve Fund X-1 Subaccount and such Basis Risk
Shortfall to the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class
B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class B-11 and Class B-12
Certificates, sequentially, in that order.
93
Funds
remaining in the applicable Subaccount of the Basis Risk Reserve Fund on any
Distribution Date after funding the payment of Basis Risk Shortfalls for such
Distribution Date will be remitted to the Interest-Only Certificates, up to
the
amount of the X-1 Required Reserve Fund Deposit.
(d) Funds
in
the Basis Risk Reserve Fund shall be invested in Permitted Investments. Any
earnings on amounts in the Basis Risk Reserve Fund shall be for the benefit
of
the Class X-1 and Class X-2A1B Certificateholders. The Interest-Only
Certificates shall evidence ownership of the Basis Risk Reserve Fund for federal
income tax purposes and the Holders thereof shall direct the Trustee, in
writing, as to investment of amounts on deposit therein. The Class X-1 and
Class
X-2A1B Certificateholder(s) shall be liable for any losses incurred on such
investments. In the absence of written instructions from the Class X-1 and
Class
X-2A1B Certificateholder(s) as to investment of funds on deposit in the Basis
Risk Reserve Fund, such funds shall be invested in money market funds as
specified by the Depositor and as described in clause (vi) of the definition
of
Permitted Investments in Article I. For all federal income tax purposes, amounts
transferred by the Upper-Tier REMIC to the Basis Risk Reserve Fund shall be
treated as amounts distributed by the Upper-Tier REMIC to the Class X-1 and
Class X-2A1B Certificateholders.
(e) Except
as
expressly provided hereunder, the Trustee shall have no obligation to invest
cash held in the Basis Risk Reserve Fund in the absence of timely and specific
written investment direction from the Depositor. In no event shall the Trustee
be liable for the selection of investments or for investment losses incurred
thereon. The Trustee shall have no liability in respect of losses incurred
as a
result of the liquidation of any investment prior to its stated maturity or
the
failure of the Depositor to provide timely written investment
direction.
(f) The
Trustee or its Affiliates are permitted to receive additional compensation
that
could be deemed to be in the Trustee’s economic self interest for (i) serving as
investment advisor, administrator, shareholder servicing agent, custodian or
sub-custodian with respect to certain Permitted Investments, (ii) using
Affiliates to effect transactions in certain Permitted Investments and (iii)
effecting transactions in certain Permitted Investments. The Trustee does not
guarantee the performance of any Permitted Investment.
(g)
Upon
termination of the Trust Fund any amounts remaining in the Basis Risk Reserve
Fund shall be distributed to the Class X-1 Certificateholders.
SECTION
5.08. Recoveries.
(a) With
respect to any Class of Certificates or Principal-Only Component to which a
Realized Loss has been allocated (including any such Class or Principal-Only
Component for which the related Class Principal Balance or Component Principal
Balance has been reduced to zero), the Class Principal Balance or Component
Principal Balance of such Class or Component, as applicable, will be increased,
up to the amount of related Recoveries for such Distribution Date as
follows:
94
(i) first,
the Class Principal Balance of each Class of Senior Certificates or Component
Principal Balance of the Principal-Only Component related to the Loan Group
from
which the Recovery was collected, will be increased pro
rata,
based
on Realized Losses borne by such Class or Component up to the lesser of (i)
(x)
the excess amount by which Net Realized Losses previously borne by such Class
or
Component over (y) the amount of payments received under the Financial Guaranty
Insurance Policy (that remain unreimbursed) with respect to such Realized Losses
and (ii) Recoveries for such Distribution Date, and
(ii) second,
the Class Principal Balance of each Class of Subordinate Certificates will
be
increased in order of seniority, up to the amount by which Net Realized Losses
previously allocated to each such Class exceeds the amount of Recoveries for
such Distribution Date previously distributed to such Class.
(b) Any
increase to the Class Principal Balance of a Class of Certificates or Component
Principal Balance of a Principal-Only Component shall increase the Certificate
Principal Balance of each Certificate of the related Class or the Component
Principal Balance of each PO Component pro
rata
in
accordance with each Percentage Interest.
To
the
extent that the Certificate Insurer has made a payment in respect of Realized
Losses and such amount has not previously been reimbursed pursuant to Section
5.01(a)(iv), the Certificate Insurer will be subrogated to the rights of the
Holders of the Insured Certificates and will be entitled to the amount of any
such Realized Losses paid by it to the Insured Certificates that remains
unreimbursed prior to any Recoveries being allocated to the Holders of the
Insured Certificates.
SECTION
5.09. [Reserved]
ARTICLE
VI
THE
CERTIFICATES
SECTION
6.01. The
Certificates.
The
Certificates shall be substantially in the form annexed hereto as Exhibit A-1
through E. Each of the Certificates shall, on original issue, be executed by
the
Trustee and authenticated and delivered by the Certificate Registrar upon the
written order of the Depositor concurrently with the sale and assignment to
the
Trustee of the Trust Fund. Each Class of the Regular Certificates shall be
initially evidenced by one or more Certificates representing a Percentage
Interest with a minimum dollar denomination of $25,000 and integral dollar
multiples of $1 in excess thereof, in the case of the Class X-1 and Class X-2A1B
Certificates, a minimum notional amount of $100,000 and integral dollar
multiples of $1 in excess thereof, and in the case of the Class PO-1 and Class
PO-2A1B Certificates, which will be issued in minimum percentage interests
of
0.01%, provided,
that,
such certificates must be purchased in minimum total investments of at least
$100,000. The Class A-R and Class A-R-II Certificates will each be issued as
a
single certificate in physical form.
95
The
Certificates shall be executed on behalf of the Trust by manual or facsimile
signature on behalf of the Trustee by a Responsible Officer. Certificates
bearing the manual or facsimile signatures of individuals who were, at the
time
when such signatures were affixed, authorized to sign on behalf of the Trustee
shall be binding, notwithstanding that such individuals or any of them have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of such Certificate.
Each
Certificate shall, on original issue, be authenticated by the Certificate
Registrar upon the order of the Depositor. No Certificate shall be entitled
to
any benefit under this Agreement or be valid for any purpose, unless such
Certificate shall have been manually authenticated by the Certificate Registrar
substantially in the form provided for herein, and such authentication upon
any
Certificate shall be conclusive evidence, and the only evidence, that such
Certificate has been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication. At any time and
from time to time after the execution and delivery of this Agreement, the
Depositor may deliver Certificates executed by the Trustee to the Certificate
Registrar for authentication and the Certificate Registrar shall authenticate
and deliver such Certificates as provided in this Agreement and not otherwise.
Subject to Section 6.02(c), the Senior Certificates (other than the Residual
Certificates) and the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5,
Class B-6, Class B-7, Class B-8, Class B-9, Class B-10, Class B-11 and Class
B-12 Certificates shall be Book-Entry Certificates. The Residual Certificates
shall be Physical Certificates.
The
Private Certificates shall be offered and sold in reliance either on (i) the
exemption from registration under Rule 144A of the Securities Act and shall
be
issued initially in the form of one or more permanent global Certificates in
definitive, fully registered form with the applicable legends set forth in
Exhibit C (each, a “Restricted
Global Security”)
or
(ii) Regulation S and shall be issued initially in the form of one or more
permanent global Certificates in definitive, fully registered form without
interest coupons with the applicable legends set forth in Exhibit C hereto
(each, a “Regulation
S Global Security”),
which
shall be deposited on behalf of the subscribers for such Certificates
represented thereby with the Trustee, as custodian for DTC and registered in
the
name of a nominee of DTC, duly executed by the Trustee and authenticated by
the
Certificate Registrar as hereinafter provided. The aggregate principal amounts
of the Restricted Global Securities or Regulation S Global Securities, as
applicable, may from time to time be increased or decreased by adjustments
made
on the records of the Certificate Registrar and DTC or its nominee, as the
case
may be, as hereinafter provided.
SECTION
6.02. Registration
of Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall cause to be kept a Certificate Register in which,
subject to such reasonable regulations as it may prescribe, the Certificate
Registrar shall provide for the registration of Certificates and of transfers
and exchanges of Certificates as herein provided. The Trustee is hereby
appointed, and the Trustee hereby accepts its appointment as, initial
Certificate Registrar, for the purpose of registering Certificates and transfers
and exchanges of Certificates as herein provided.
Upon
surrender for registration of transfer of any Certificate at the Corporate
Trust
Office of the Certificate Registrar maintained for such purpose pursuant to
the
foregoing paragraph, the Trustee on behalf of the Trust shall execute, and
the
Certificate Registrar shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates of the same
aggregate Percentage Interest.
96
At
the
option of the Certificateholders, Certificates may be exchanged for other
Certificates in authorized denominations and the same aggregate Percentage
Interests, upon surrender of the Certificates to be exchanged at any such office
or agency. Whenever any Certificates are so surrendered for exchange, the
Trustee shall execute on behalf of the Trust, and the Certificate Registrar
shall authenticate and deliver the Certificates which the Certificateholder
making the exchange is entitled to receive. Every Certificate presented or
surrendered for registration of transfer or exchange shall (if so required
by
the Certificate Registrar) be duly endorsed by, or be accompanied by a written
instrument of transfer satisfactory to the Certificate Registrar duly executed
by, the Holder thereof or his attorney duly authorized in writing.
(b) Except
as
provided in paragraph (c) or (d) below, the Book-Entry Certificates shall at
all
times remain registered in the name of the Depository or its nominee and at
all
times: (i) registration of such Certificates may not be transferred by the
Trustee or the Certificate Registrar except to another Depository; (ii) the
Depository shall maintain book-entry records with respect to the Certificate
Owners and with respect to ownership and transfers of such Certificates; (iii)
ownership and transfers of registration of such Certificates on the books of
the
Depository shall be governed by applicable rules established by the Depository;
(iv) the Depository may collect its usual and customary fees, charges and
expenses from its Depository Participants; (v) the Certificate Registrar and
the
Trustee shall for all purposes deal with the Depository as representative of
the
Certificate Owners of the Certificates for purposes of exercising the rights
of
Holders under this Agreement, and requests and directions for and votes of
such
representative shall not be deemed to be inconsistent if they are made with
respect to different Certificate Owners; (vi) the Trustee and the Certificate
Registrar may rely and shall be fully protected in relying upon information
furnished by the Depository with respect to its Depository Participants and
furnished by the Depository Participants with respect to indirect participating
firms and Persons shown on the books of such indirect participating firms as
direct or indirect Certificate Owners; and (vii) the direct participants of
the Depository shall have no rights under this Agreement under or with respect
to any of the Certificates held on their behalf by the Depository, and the
Depository may be treated by the Trustee, the Certificate Registrar and their
respective agents, employees, officers and directors as the absolute owner
of
the Certificates for all purposes whatsoever.
All
transfers by Certificate Owners of Book-Entry Certificates shall be made in
accordance with the procedures established by the Depository Participant or
brokerage firm representing such Certificate Owners. Each Depository Participant
shall only transfer Book-Entry Certificates of Certificate Owners that it
represents or of brokerage firms for which it acts as agent in accordance with
the Depository’s normal procedures. The parties hereto are hereby authorized to
execute one or more Letter of Representations with the Depository or take such
other action as may be necessary or desirable to register a Book-Entry
Certificate to the Depository. In the event of any conflict between the terms
of
any such Letter of Representation and this Agreement, the terms of this
Agreement shall control.
97
(c) If
(x)
the Depository or the Depositor advises the Certificate Registrar in writing
that the Depository is no longer willing or able to discharge properly its
responsibilities as Depository and (y) the Certificate Registrar or the
Depositor is unable to locate a qualified successor, upon surrender to the
Certificate Registrar of the Book-Entry Certificates by the Depository,
accompanied by registration instructions from the Depository for registration,
the Trustee shall at the Seller’s expense execute on behalf of the Trust and
authenticate definitive, fully registered certificates (the “Definitive
Certificates”).
Neither the Depositor nor the Certificate Registrar shall be liable for any
delay in delivery of such instructions and may conclusively rely on, and shall
be protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Trustee, the Certificate Registrar and the Depositor shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
(d) No
transfer, sale, pledge or other disposition of any Private Certificate, other
than a Private Certificate sold in an offshore transaction in reliance on
Regulation S, shall be made unless such disposition is exempt from the
registration requirements of the Securities Act, and any applicable state
securities laws or is made in accordance with the Securities Act and laws.
Any
Private Certificates sold to an “accredited investor” under Rule 501(a)(1), (2),
(3) or (7) under the Securities Act shall be issued only in the form of one
or
more Definitive Certificates and the records of the Certificate Registrar and
DTC or its nominee shall be adjusted to reflect the transfer of such Definitive
Certificates. In the event of any transfer of any Private Certificate in the
form of a Definitive Certificate, (i) the transferee shall certify (A) such
transfer is made to a Qualified Institutional Buyer in reliance upon Rule 144A
(as evidenced by an investment letter delivered to the Certificate Registrar,
in
substantially the form attached hereto as Exhibit J-2) under the Securities
Act,
or (B) such transfer is made to an “accredited investor” under Rule 501(c)(1),
(2), (3) or (7) under the Securities Act (as evidenced by an investment letter
delivered to the Certificate Registrar, in substantially the form attached
hereto as Exhibit J-1, and, if so required by the Certificate Registrar and
the
Depositor, a written Opinion of Counsel (which may be in-house counsel)
acceptable to and in form and substance reasonably satisfactory to the
Certificate Registrar and the Depositor, delivered to the Certificate Registrar
and the Depositor stating that such transfer may be made pursuant to an
exemption, including a description of the applicable exemption and the basis
therefor, from the Securities Act or is being made pursuant to the Securities
Act, which Opinion of Counsel shall not be an expense of the Trust, the Trustee,
the Certificate Registrar or the Depositor) or (ii) the Certificate Registrar
shall require the transferor to execute a transferor certificate and the
transferee to execute an investment letter acceptable to and in form and
substance reasonably satisfactory to the Depositor and the Certificate Registrar
certifying to the Depositor and the Certificate Registrar the facts surrounding
such transfer, which investment letter shall not be an expense of the Trust,
the
Trustee, the Certificate Registrar or the Depositor. Each Holder of a Private
Certificate desiring to effect such transfer shall, and does hereby agree to,
indemnify the Trustee, the Certificate Registrar, the Seller and the Depositor
against any liability that may result if the transfer is not so exempt or is
not
made in accordance with such federal and state laws.
In
the
case of a Private Certificate that is a Book-Entry Certificate, for purposes
of
the preceding paragraph, the representations set forth in the investment letter
in clause (i) shall be deemed to have been made to the Certificate Registrar
by
the transferee’s acceptance of such Private Certificate that is also a
Book-Entry Certificate (or the acceptance by a Certificate Owner of the
beneficial interest in such Certificate).
98
If
any
Certificate Owner that is required under this Section 6.02(d) to transfer its
Class B-10, Class B-11 or Class B-12 Certificates that are Book-Entry
Certificates in the form of Definitive Certificates, (i) notifies the
Trustee of such transfer or exchange and (ii) transfers such Book-Entry
Certificates to the Trustee, in its capacity as such, through the book-entry
facilities of the Depository, then the Trustee, on behalf of the Trust, shall
decrease the balance of such Book-Entry Certificates, or the Trustee shall
use
reasonable efforts to cause the surrender to the Certificate Registrar of such
Book-Entry Certificates by the Depository, and thereupon, the Trustee shall
execute, authenticate and deliver to such Certificate Owner or its designee
one
or more Definitive Certificates in authorized denominations and with a like
aggregate Certificate Principal Balance.
Subject
to the provisions of this Section 6.02(d) governing registration of transfer
and
exchange Class B-10, Class B-11 or Class B-12 Certificates (i) held as
Definitive Certificates may be transferred in the form of Book-Entry
Certificates in reliance on Rule 144A (to one or more Qualified Institutional
Buyers) or Regulation S under the Securities Act that are acquiring such
Definitive Certificates, their own accounts for or for the accounts of other
Qualified Institutional Buyers and (ii) held as Definitive Certificates by
a Qualified Institutional Buyer or an investor under Regulation S for its own
account or for the account of another Qualified Institutional Buyer or
Regulation S investor may be exchanged for Book-Entry Certificates, in each
case
upon surrender of such Certificates for registration of transfer or exchange
at
the offices of the Trustee maintained for such purpose. Whenever any such
Certificates are so surrendered for transfer or exchange, either the Trustee
shall increase the balance of the related Book-Entry Certificates or the Trustee
shall execute, authenticate and deliver the Book-Entry Certificates for which
such Certificates were transferred or exchanged, as necessary and appropriate.
No Holder of any such Definitive Certificates other than a Qualified
Institutional Buyer or a Regulation S investor holding such Certificates for
its
own account or for the account of another Qualified Institutional Buyer or
Regulation S investor may exchange such Certificates for Book-Entry
Certificates. Further, any Certificate Owner of such Book-Entry Certificates
other than any such Qualified Institutional Buyers or Regulation S investors
shall notify the Trustee of its status as such and shall transfer such
Book-Entry Certificate to the Trustee, through the book-entry facilities of
the
Depository, whereupon, and also upon surrender to the Trustee of such Book-Entry
Certificates by the Depository, (which surrender the Trustee shall use
reasonable efforts to cause to occur), the Trustee shall execute, authenticate
and deliver to such Certificate Owner or such Certificate Owner’s nominee one or
more Definitive Certificates in authorized denominations and with a like
aggregate Certificate Principal Balance.
None
of
the Depositor, the Seller, the Certificate Registrar or the Trustee is obligated
to register or qualify the Private Certificates under the Securities Act or
any
other securities laws or to take any action not otherwise required under this
Agreement to permit the transfer of such Certificates without registration
or
qualification. Any Certificateholder desiring to effect the transfer of a
Private Certificate shall, and does hereby agree to, indemnify the Trustee,
the
Seller, the Depositor and the Certificate Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.
99
No
transfer of an ERISA-Restricted Certificate in the form of a Definitive
Certificate shall be made unless the Certificate Registrar shall have received
either (i) a representation from the transferee of such Certificate, acceptable
to and in form and substance satisfactory to the Certificate Registrar and
the
Depositor (such requirement is satisfied only by the Certificate Registrar’s
receipt of a representation letter from the transferee substantially in the
form
of Exhibit I-1 or I-2, as applicable, hereto), to the effect that such
transferee is not an employee benefit plan subject to Section 406 of ERISA
or a
plan or arrangement subject to Section 4975 of the Code, nor a person acting
on
behalf of any such plan or arrangement nor using the assets of any such plan
or
arrangement to effect such transfer or (ii) if such Certificate has been the
subject of an ERISA-Qualifying Underwriting, and the purchaser is an insurance
company, a representation that the purchaser is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE
95-60”)
and
that the purchase and holding of such Certificates are covered under Sections
I
and III of PTCE 95-60 or (iii) an Opinion of Counsel satisfactory to the
Certificate Registrar, which Opinion of Counsel shall not be an expense of
the
Trustee, the Certificate Registrar, the Servicer, the Depositor or the Trust,
addressed to the Certificate Registrar, to the effect that the purchase and
holding of such ERISA-Restricted Certificate in the form of a Definitive
Certificate will not result in a non-exempt prohibited transaction under Section
406 of ERISA or Section 4975 of the Code and will not subject the Trustee,
the
Certificate Registrar, the Servicer, or the Depositor to any obligation in
addition to those expressly undertaken in this Agreement or to any liability.
Notwithstanding anything else to the contrary herein, any purported transfer
of
an ERISA-Restricted Certificate in the form of a Definitive Certificate to
an
employee benefit plan subject to ERISA or Section 4975 of the Code without
the
delivery to the Certificate Registrar of an Opinion of Counsel satisfactory
to
the Certificate Registrar as described above shall be void and of no
effect.
In
the
case of an ERISA-Restricted Certificate that is a Book-Entry Certificate, for
purposes of clauses (i) or (ii) of the first sentence of the preceding
paragraph, such representations shall be deemed to have been made to the
Certificate Registrar by the transferee’s acceptance of such ERISA-Restricted
Certificate that is also a Book-Entry Certificate (or the acceptance by a
Certificate Owner of the beneficial interest in such Certificate).
To
the
extent permitted under applicable law (including, but not limited to, ERISA),
none of the Trustee, the Certificate Registrar or the Depositor shall have
any
liability to any Person for any registration of transfer of any ERISA-Restricted
Certificate that is in fact not permitted by this Section 6.02(d) so long as
the
transfer was registered by the Certificate Registrar in accordance with the
foregoing requirements. In addition, none of the Trustee, the Certificate
Registrar or the Depositor shall be required to monitor, determine or inquire
as
to compliance with the transfer restrictions with respect to any
ERISA-Restricted Certificate in the form of a Book-Entry Certificate, and none
of the Trustee, the Certificate Registrar or the Depositor shall have any
liability for transfers of Book-Entry Certificates or any interests therein
made
in violation of the restrictions on transfer described in the Prospectus
Supplement and this Agreement.
(e) Each
Person who has or who acquires any Ownership Interest in a Residual Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions and to have irrevocably
appointed the Depositor or its designee as its attorney-in-fact to negotiate
the
terms of any mandatory sale under clause (v) below and to execute all
instruments of transfer and to do all other things necessary in connection
with
any such sale, and the rights of each Person acquiring any Ownership Interest
in
a Residual Certificate are expressly subject to the following
provisions:
100
(i) Each
Person holding or acquiring any Ownership Interest in a Residual Certificate
shall be a Permitted Transferee who acquires such Ownership Interest in a
Residual Certificate for its own account and not in the capacity as trustee,
nominee or agent for another Person and shall promptly notify the Certificate
Registrar and the Trustee of any change or impending change in its status as
such a Permitted Transferee.
(ii) No
Ownership Interest in a Residual Certificate may be registered on the Closing
Date and no Ownership Interest in a Residual Certificate may thereafter be
transferred, and the Certificate Registrar shall not register the Transfer
of a
Residual Certificate unless, in addition to the certificates required to be
delivered under subsection (d) above, the Trustee and the Certificate Registrar
shall have been furnished with an affidavit (“Transfer
Affidavit”)
of the
initial owner of such Residual Certificate or proposed transferee of a Residual
Certificate in the form attached hereto as Exhibit L.
(iii) In
connection with any proposed transfer of any Ownership Interest in a Residual
Certificate, the Trustee and the Certificate Registrar shall as a condition
to
registration of the transfer, require delivery to them of a Transferor
Certificate in the form of Exhibit K hereto from the proposed transferor to
the
effect that the transferor (a) has no knowledge the proposed Transferee is
not a
Permitted Transferee acquiring an Ownership Interest in such Residual
Certificate for its own account and not in a capacity as trustee, nominee,
or
agent for another Person, and (b) has not undertaken the proposed transfer
in
whole or in part to impede the assessment or collection of tax.
(iv) Any
attempted or purported Transfer of any Ownership Interest in a Residual
Certificate in violation of the provisions of this Section shall be absolutely
null and void and shall vest no rights in the purported transferee. If any
purported transferee shall, in violation of the provisions of this Section,
become a Holder of such Residual Certificate, then the prior Holder of such
Residual Certificate that is a Permitted Transferee shall, upon discovery that
the registration of Transfer of such Residual Certificate was not in fact
permitted by this Section, be restored to all rights as Holder thereof
retroactive to the date of registration of transfer of such Residual
Certificate. None of the Trustee, the Certificate Registrar or the Depositor
shall have any liability to any Person for any registration of Transfer of
a
Residual Certificate that is in fact not permitted by this Section so long
as
the Trustee and the Certificate Registrar received the documents specified
in
clause (iii). The Certificate Registrar shall be entitled to recover from any
Holder of such Residual Certificate that was in fact not a Permitted Transferee
at the time such distributions were made all distributions made on such Residual
Certificate. Any such distributions so recovered by the Certificate Registrar
shall be distributed and delivered by the Certificate Registrar to the last
Holder of such Residual Certificate that is a Permitted Transferee.
101
(v) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee shall have the right but not the obligation, without notice to the
Holder of such Residual Certificate or any other Person having an Ownership
Interest therein, to notify the Depositor to arrange for the sale of such
Residual Certificate. The proceeds of such sale, net of commissions (which
may
include commissions payable to the Depositor or its affiliates in connection
with such sale), expenses and taxes due, if any, will be remitted by the
Certificate Registrar to the previous Holder of such Residual Certificate that
is a Permitted Transferee, except that in the event that the Certificate
Registrar determines that the Holder of such Residual Certificate may be liable
for any amount due under this Section or any other provisions of this Agreement,
the Certificate Registrar may withhold a corresponding amount from such
remittance as security for such claim. The terms and conditions of any sale
under this clause (v) shall be determined in the sole discretion of the Trustee
and the Certificate Registrar and they shall not be liable to any Person having
an Ownership Interest in such Residual Certificate as a result of its exercise
of such discretion.
(vi) If
any
Person other than a Permitted Transferee acquires any Ownership Interest in
a
Residual Certificate in violation of the restrictions in this Section, then
the
Trustee upon receipt of reasonable compensation will provide to the Internal
Revenue Service, and to the persons specified in Sections 860E(e)(3) and (6)
of
the Code, information needed to compute the tax imposed under Section 860E(e)(5)
of the Code on transfers of residual interests to disqualified
organizations.
The
foregoing provisions of this Section shall cease to apply to transfers occurring
on or after the date on which there shall have been delivered to the Certificate
Registrar and the Servicer, in form and substance satisfactory to the
Certificate Registrar, (i) written notification from each Rating Agency that
the
removal of the restrictions on Transfer set forth in this Section will not
cause
such Rating Agency to downgrade its ratings of the Certificates (determined
in
the case of the Insured Certificates, without giving effect to the Financial
Guaranty Insurance Policy) and (ii) an Opinion of Counsel to the effect that
such removal will not cause the REMIC created hereunder to fail to qualify
as a
REMIC.
(f) Notwithstanding
any provision to the contrary herein, so long as a Restricted Global Security
or
Regulation S Global Security, as applicable, representing the Certificates
remains outstanding and is held by or on behalf of the Depository, transfers
of
a Restricted Global Security or Regulation S Global Security, as applicable,
representing the Certificates, in whole or in part, shall only be made in
accordance with Section 6.01 and this Section 6.02(f).
(i) Subject
to clauses (ii) and (iii) of this Section 6.02(f), transfers of a Restricted
Global Security or Regulation S Global Security, as applicable, representing
the
Certificates shall be limited to transfers of such a Restricted Global Security
or Regulation S Global Security, as applicable, in whole, but not in part,
to
nominees of the Depository or to a successor of the Depository or such
successor’s nominee.
102
(ii)Restricted
Global Security to Regulation S Global Security.
If a
holder of a beneficial interest in a Restricted Global Security deposited with
or on behalf of the Depository wishes at any time to exchange its interest
in
such Restricted Global Security for an interest in a Regulation S Global
Security, or to transfer its interest in such Restricted Global Security to
a
Person who wishes to take delivery thereof in the form of an interest in a
Regulation S Global Security, such holder, provided such holder is not a U.S.
Person, may, subject to the rules and procedures of the Depository, exchange
or
cause the exchange of such interest for an equivalent beneficial interest in
the
Regulation S Global Security. Upon receipt by the Trustee, as Certificate
Registrar, of (A) instructions from the Depository directing the Trustee, as
Certificate Registrar, to cause to be credited a beneficial interest in a
Regulation S Global Security in an amount equal to the beneficial interest
in
such Restricted Global Security to be exchanged but not less than the minimum
denomination applicable to such Certificateholders’ held through a Regulation S
Global Security, (B) a written order given in accordance with the Depository’s
procedures containing information regarding the participant account of the
Depository and, in the case of a transfer pursuant to and in accordance with
Regulation S, the Euroclear or Clearstream account to be credited with such
increase and (C) a certificate in the form of Exhibit N-1 hereto given by the
holder of such beneficial interest stating that the exchange or transfer of
such
interest has been made in compliance with the transfer restrictions applicable
to the Global Securities, including that the holder is not a U.S. Person and
pursuant to and in accordance with Regulation S, the Trustee, as Certificate
Registrar, shall reduce the principal amount of the Restricted Global Security
and increase the principal amount of the Regulation S Global Security by the
aggregate principal amount of the beneficial interest in the Restricted Global
Security to be exchanged, and shall instruct Euroclear or Clearstream, as
applicable, concurrently with such reduction, to credit or cause to be credited
to the account of the Person specified in such instructions a beneficial
interest in the Regulation S Global Security equal to the reduction in the
principal amount of the Restricted Global Security.
(iii)Regulation
S Global Security to Restricted Global Security.
If a
holder of a beneficial interest in a Regulation S Global Security deposited
with
or on behalf of the Depository wishes at any time to transfer its interest
in
such Regulation S Global Security to a Person who wishes to take delivery
thereof in the form of an interest in a Restricted Global Security, such holder
may, subject to the rules and procedures of the Depository, exchange or cause
the exchange of such interest for an equivalent beneficial interest in a
Restricted Global Security. Upon receipt by the Trustee, as Certificate
Registrar, of (A) instructions from the Depository directing the Trustee, as
Certificate Registrar, to cause to be credited a beneficial interest in a
Restricted Global Security in an amount equal to the beneficial interest in
such
Regulation S Global Security to be exchanged but not less than the minimum
denomination applicable to such Certificateholder’s Certificates held through a
Restricted Global Security, to be exchanged, such instructions to contain
information regarding the participant account with the Depository to be credited
with such increase, and (B) a certificate in the form of Exhibit N-2 hereto
given by the holder of such beneficial interest and stating, among other things,
that the Person transferring such interest in such Regulation S Global Security
reasonably believes that the Person acquiring such interest in a Restricted
Global Security is a qualified institutional buyer within the meaning of Rule
144A, is obtaining such beneficial interest in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities
laws
of any State of the United States or any other jurisdiction, then the Trustee,
as Certificate Registrar, will reduce the principal amount of the Regulation
S
Global Security and increase the principal amount of the Restricted Global
Security by the aggregate principal amount of the beneficial interest in the
Regulation S Global Security to be transferred and the Trustee, as Certificate
Registrar, shall instruct the Depository, concurrently with such reduction,
to
credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Restricted Global Security equal
to
the reduction in the principal amount of the Regulation S Global
Security.
103
(iv)Other
Exchanges.
In the
event that a Restricted Global Security or Regulation S Global Security, as
applicable, is exchanged for Certificates in definitive registered form without
interest coupons, such Certificates may be exchanged for one another only in
accordance with such procedures as are substantially consistent with the
provisions above (including certification requirements intended to insure that
such transfers comply with Rule 144A or are to non-U.S. Persons, or otherwise
comply with Regulation S under the Securities Act, as the case may be, and
as
may be from time to time adopted by the Depositor and the Trustee.
(v)Restrictions
on U.S. Transfers.
Transfers of interests in the Regulation S Global Security to U.S. persons
(as
defined in Regulation S) shall be limited to transfers made pursuant to the
provisions of Section 6.02(f)(iii).
(g) No
service charge shall be made for any registration of transfer or exchange of
Certificates of any Class, but the Certificate Registrar may require payment
of
a sum sufficient to cover any tax or governmental charge that may be imposed
in
connection with any transfer or exchange of Certificates.
All
Certificates surrendered for registration of transfer or exchange shall be
cancelled by the Certificate Registrar and disposed of pursuant to its standard
procedures.
SECTION
6.03. Mutilated,
Destroyed, Lost or Stolen Certificates.
If
(i)
any mutilated Certificate is surrendered to the Trustee or the Certificate
Registrar or the Trustee or the Certificate Registrar receives evidence to
its
satisfaction of the destruction, loss or theft of any Certificate and (ii)
there
is delivered to the Trustee and the Depositor (and with respect to the Insured
Certificates, the Certificate Insurer) such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Trustee, the Depositor or the Certificate Registrar (and, with respect
to
the Insured Certificates, the Certificate Insurer) that such Certificate has
been acquired by a bona fide purchaser, the Trustee shall execute on behalf
of
the Trust and the Certificate Registrar shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen
Certificate, a new Certificate of like tenor and Percentage Interest. Upon
the
issuance of any new Certificate under this Section, the Trustee, the Depositor
or the Certificate Registrar may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee,
the Depositor and the Certificate Registrar) in connection therewith. Any
duplicate Certificate issued pursuant to this Section, shall constitute complete
and indefeasible evidence of ownership in the Trust Fund, as if originally
issued, whether or not the lost, stolen or destroyed Certificate shall be found
at any time.
104
SECTION
6.04. Persons
Deemed Owners.
The
Depositor, the Trustee, the Certificate Registrar, the Certificate Insurer
(with
respect to the Insured Certificates) and any agent of the Depositor, the
Trustee, Certificate Registrar or Certificate Insurer may treat the Person,
including a Depository, in whose name any Certificate is registered as the
owner
of such Certificate for the purpose of receiving distributions pursuant to
Section 5.01 hereof and for all other purposes whatsoever, and none of the
Trust, the Depositor, the Trustee, the Certificate Registrar, the Certificate
Insurer or any agent of any of them shall be affected by notice to the
contrary.
ARTICLE
VII
DEFAULT
SECTION
7.01. Events
of Default.
If
an
Event of Default described in a Servicing Agreement shall occur and be
continuing, then, and in each and every such case, so long as an Event of
Default shall not have been remedied within the applicable grace period, the
Trustee may, and at the written direction of the Holders of Certificates
evidencing Voting Rights aggregating not less than 51%, shall, by notice then
given in writing to the Servicer, terminate all of the rights and obligations
of
the Servicer as servicer under this Agreement. Any such notice to the Servicer
shall also be given to the Rating Agencies, the Depositor, the Certificate
Insurer and the Seller. The Trustee, upon a Responsible Officer having actual
knowledge of such default, shall deliver a written notice to the Servicer of
the
Event of Default on any Servicer Remittance Date on which the Servicer fails
to
make any deposit or payment required pursuant to the Servicing Agreement
(including but not limited to Advances to the extent required pursuant to the
Servicing Agreement). Pursuant to the Servicing Agreement, on or after the
receipt by the Servicer (and by the Trustee if such notice is given by the
Certificate Insurer or the Holders) of such written notice, all authority and
power of the Servicer under the Servicing Agreement, with respect to the
Mortgage Loans or otherwise, shall pass to and be vested in the Trustee and
the
Trustee is hereby authorized and empowered to execute and deliver, on behalf
of
the Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether to
complete the transfer and endorsement of each Mortgage Loan and related
documents or otherwise.
105
SECTION
7.02. Trustee
to Act.
(a) From
and
after the date the Servicer (and the Trustee, if notice is sent by the
Certificate Insurer or the Holders) receives a notice of termination pursuant
to
Section 7.01, the Trustee immediately shall be the successor in all respects
to
the Servicer in its capacity as servicer under the Servicing Agreement and
the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof arising on and after its succession,
including the immediate obligation to make Advances. As compensation therefor,
the Trustee shall be entitled to such compensation as the Servicer would have
been entitled to under the Servicing Agreement if no such notice of termination
had been given. Notwithstanding the above, (i) if the Trustee is unwilling
to
act as successor Servicer or (ii) if the Trustee is legally unable so to act,
the Trustee shall appoint or petition a court of competent jurisdiction to
appoint, any established housing and home finance institution, bank or other
mortgage loan or home equity loan servicer having a net worth of not less than
$15,000,000 as the successor to the Servicer under the Servicing Agreement
in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer under the Servicing Agreement; provided,
that
the
appointment of any such successor Servicer shall not result in the
qualification, reduction or withdrawal of the ratings assigned to the
Certificates by each Rating Agency as evidenced by a letter to such effect
from
such Rating Agency. Pending appointment of a successor to the Servicer under
the
Servicing Agreement, unless the Trustee is prohibited by law from so acting,
the
Trustee shall act in such capacity as hereinabove provided. In connection with
such appointment and assumption, the successor shall be entitled to receive
compensation out of payments on Mortgage Loans in an amount equal to the
compensation which the Servicer would otherwise have received hereunder. Except
with respect to the making of Advances the defaulting Servicer was required
to
make but did not make, the successor Servicer, including the Trustee in such
capacity, shall not be liable for any acts or omissions of the predecessor
Servicer or for any breach by such Servicer of any of its representations or
warranties made by it in the Servicing Agreement or in any related document
or
agreement. The Trustee and such successor shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession.
(b) Any
successor, including the Trustee, to the Servicer under the Servicing Agreement
shall during the term of its service as Servicer continue to service and
administer the Mortgage Loans for the benefit of Certificateholders pursuant
to
the terms and conditions of the Servicing Agreement, and maintain in force
a
policy or policies of insurance covering errors and omissions in the performance
of its obligations as Servicer under the Servicing Agreement.
(c) Notwithstanding
anything else herein to the contrary, in no event shall the Trustee be liable
for any servicing fee or for any differential in the amount of the servicing
fee
paid hereunder and the amount necessary to induce any successor Servicer to
act
as successor Servicer under this Agreement and the transactions set forth or
provided for herein.
(d) The
Trustee shall be entitled to be reimbursed by the Trust Fund (pursuant to
Section 4.03(a)(xii)), in the event that the Servicer does not reimburse the
Trustee under the Servicing Agreement, for all costs associated with the
transfer of servicing from the predecessor Servicer, including, without
limitation, any costs or expenses associated with the termination of the
predecessor Servicer, the appointment of a successor servicer, the complete
transfer of all servicing data and the completion, correction or manipulation
of
such servicing data as may be required by the Trustee or any successor servicer
to correct any errors or insufficiencies in the servicing data or otherwise
to
enable the Trustee or successor servicer to service the Mortgage Loans property
and effectively.
106
SECTION
7.03. Waiver
of Event of Default.
The
Majority Certificateholders may, on behalf of all Certificateholders, by notice
in writing to the Trustee, direct the Trustee to waive any events permitting
removal of the Servicer under this Agreement, provided,
however,
that
the Majority Certificateholders may not waive an event that results in a failure
to make any required distribution on a Certificate without the consent of the
Holder of such Certificate. Upon any waiver of an Event of Default, such event
shall cease to exist and any Event of Default arising therefrom shall be deemed
to have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other event or impair any right consequent thereto
except to the extent expressly so waived. Notice of any such waiver shall be
given by the Trustee to the Rating Agencies and the Certificate
Insurer.
SECTION
7.04. Notification
to Certificateholders.
(a) Upon
any
termination or appointment of a successor to the Servicer pursuant to this
Article VII, the Trustee shall give prompt written notice thereof to the
Certificate Insurer, the Certificateholders and each Rating Agency.
(b) No
later
than 60 days after the occurrence of any event which constitutes or which,
with
notice or a lapse of time or both, would constitute an Event of Default of
which
a Responsible Officer of the Trustee becomes aware of the occurrence of such
an
event, the Trustee shall transmit by mail to the Certificate Insurer and all
Certificateholders notice of such occurrence unless such Event of Default shall
have been waived or cured.
ARTICLE
VIII
THE
TRUSTEE
SECTION
8.01. Duties
of the Trustee
(a) The
Trustee, prior to the occurrence of an Event of Default and after the curing
or
waiver of all Events of Default which may have occurred, undertakes to perform
such duties and only such duties as are specifically set forth in this
Agreement. If an Event of Default has occurred (which has not been cured or
waived) of which a Responsible Officer has actual knowledge, the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and
use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
The
Trustee, upon receipt of all resolutions, certificates, statements, opinions,
reports, documents, orders or other instruments furnished to the Trustee, which
are specifically required to be furnished pursuant to any provision of this
Agreement, shall examine them to determine whether they conform to the
requirements of this Agreement; provided,
however,
that
the Trustee will not be responsible for the accuracy or content of any such
resolutions, certificates, statements, opinions, reports, documents or other
instruments. If any such instrument is found not to conform to the requirements
of this Agreement in a material manner, the Trustee shall take such action
as it
deems appropriate to have the instrument corrected.
107
On
each
Distribution Date, the Trustee, shall make monthly distributions and the final
distribution to the Certificateholders from funds in the Distribution Account
as
provided in Sections 5.01 and 10.01 herein.
No
provision of this Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act or
its
own willful misconduct; provided,
however,
that:
(i) prior
to
the occurrence of an Event of Default, and after the curing of all such Events
of Default which may have occurred, the duties and obligations of the Trustee
shall be determined solely by the express provisions of this Agreement, the
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement, no implied
covenants or obligations shall be read into this Agreement against the Trustee
and, in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the
opinions expressed therein, upon any certificates or opinions furnished to
the
Trustee and conforming to the requirements of this Agreement;
(ii) the
Trustee shall not be liable for an error of judgment made in good faith by
a
Responsible Officer of the Trustee unless it shall be proved that the Trustee
was negligent in ascertaining or investigating the facts related
thereto;
(iii) the
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
consent or at the direction of Holders of Certificates as provided herein
relating to the time, method and place of conducting any remedy pursuant to
this
Agreement, or exercising or omitting to exercise any trust or power conferred
upon the Trustee under this Agreement;
(iv) the
Trustee shall not be responsible for any act or omission of the Servicer (except
in its capacity as successor servicer to the extent provided in Section
7.02(a)), the Depositor, the Seller or the Custodian, or any successor
Custodian; and
(v) the
Trustee shall not be charged with knowledge of any Event of Default unless
a
Responsible Officer of the Trustee at the Corporate Trust Office obtains actual
knowledge of such failure or the Trustee receives written notice at the
Corporate Trust Office of such Event of Default.
The
Trustee shall not be required to expend or risk its own funds or otherwise
incur
financial or other liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if there is reasonable ground
for believing that the repayment of such funds or indemnity satisfactory to
it
against such risk or liability is not assured to it, and none of the provisions
contained in this Agreement shall in any event require the Trustee to perform,
or be responsible for the manner of performance of, any of the obligations
of
the Servicer under the Servicing Agreement, except during such time, if any,
as
the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the terms of the
Servicing Agreement.
108
(b) On
or
prior to the Closing Date, the Trustee shall deliver to the Sponsor and the
Depositor a certification in the form of Exhibit R attached hereto specifying
the items it will address in its assessment of compliance with the servicing
criteria under this Section 8.01. On or before March 1 of each calendar year,
beginning with March 1, 2007 (but in no event later than March 15th)
unless
and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee
shall deliver to the Sponsor and the Depositor a report regarding its assessment
of compliance with the servicing criteria that it has identified in its
certification in the form of Exhibit R, as of and for the period ending the
end
of the fiscal year ending no later than December 31 of the year prior to the
year of delivery of the report, with respect to asset-backed security
transactions taken as a whole in which the Trustee is performing any activities
that address any of the servicing criteria identified by it in such
certification and that are backed by the same asset type backing such
asset-backed securities. Each such report shall include (a) a statement of
the
party’s responsibility for assessing compliance with the servicing criteria
applicable to such party, (b) a statement that such party used the criteria
identified in Item 1122(d) of Regulation AB (Sec. 229.1122(d)) to assess
compliance with the applicable servicing criteria, (c) disclosure of any
material instance of noncompliance identified by such party and (d) a statement
that a registered public accounting firm has issued an attestation report on
such party’s assessment of compliance with the applicable servicing criteria,
which report shall be delivered by the Trustee as provided in section 8.01(c).
(c) On
or
before March 1st of each calendar year, beginning with March 1, 2007 (but in
no
event later than March 15th)
unless
and until a Form 15 Suspension Notice has been filed by the Trustee, the Trustee
shall, at its own expense, cause a firm of independent public accountants (who
may also render other services to Trustee), which is a member of the American
Institute of Certified Public Accountants, to furnish to the Sponsor and the
Depositor a report to the effect that such firm that attests to, and reports
on,
the assessment made by such asserting party pursuant to Section 8.01(b) above,
which report shall be made in accordance with standards for attestation
engagements issued or adopted by the Public Company Accounting Oversight Board.
Notwithstanding the foregoing, the Trustee may provide a copy of the above
to
the Depositor.
(d) The
Trustee shall not appoint any Subcontractor without receiving the prior written
consent of the Sponsor and the Depositor to appoint any Subcontractor, which
consent shall not be unreasonably withheld. If the Trustee appoints a
Subcontractor without receiving such prior written consent, the Trustee shall
be
deemed to be in breach of this Agreement and may be removed by the
Depositor.
(e) The
Trustee shall notify the Depositor and the Sponsor within five (5) days of
knowledge thereof (i) of any legal proceedings pending against the Trustee
of
the type described in Item 1117 (Sec. 229.1117) of Regulation AB, (ii) of any
merger, consolidation or sale of substantially all of the assets of the Trustee
and (iii) if the Trustee shall become (but only to the extent not previously
disclosed) at any time an affiliate of any of the parties listed on Exhibit
S.
On or before March 1 of each year, the Depositor shall distribute the
information on Exhibit S to the Trustee.
(f) Each
of
the parties hereto acknowledges and agrees that the purpose of this Section
8.01(b)-(e) is to facilitate compliance by the Seller and the Depositor with
the
provisions of Regulation AB, as such may be amended or clarified from time
to
time. Therefore, each of the parties agrees that 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 and the
parties shall comply, to the extent practicable from a timing and information
systems perspective, with requests made by the Seller or the Depositor for
delivery of additional or different information as the Sponsor or the Depositor
may determine in good faith is necessary to comply with the provisions of
Regulation AB.
109
(g) The
Trustee’s obligation to provide assessments of compliance and attestations under
this Section 8.01 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 the Depositor is not otherwise provided with such
reports or copies of such reports, the Trustee shall be obligated to provide
a
copy of such reports, by March 15 of each year, to the Depositor.
SECTION
8.02. Certain
Matters Affecting the Trustee
Except
as
otherwise provided in Section 8.01 hereof:
(i) the
Trustee may request and conclusively rely upon, and shall be fully protected
in
acting or refraining from acting upon, any resolution, Officers’ Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper
or document reasonably believed by it to be genuine and to have been signed
or
presented by the proper party or parties, and the manner of obtaining consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Trustee may prescribe;
(ii) the
Trustee may consult with counsel and any advice of its counsel or any Opinion
of
Counsel shall be full and complete authorization and protection in respect
of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(iii) the
Trustee shall not be under any obligation to exercise any of the rights or
powers vested in it by this Agreement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or direction
of any of the Certificateholders, pursuant to the provisions of this Agreement,
unless such Certificateholders shall have offered to the Trustee reasonable
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby; the right of the Trustee
to perform any discretionary act enumerated in this Agreement shall not be
construed as a duty, and the Trustee shall not be answerable for other than
its
negligence or willful misconduct in the performance of any such
act;
(iv) the
Trustee shall not be personally liable for any action taken, suffered or omitted
by it in good faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Agreement;
110
(v) prior
to
the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, the Trustee shall be bound to make
any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or documents, unless requested in writing
to do so by the Majority Certificateholder; provided,
however,
that if
the payment within a reasonable time to the Trustee of the costs, expenses
or
liabilities likely to be incurred by it in the making of such investigation
is,
in the opinion of the Trustee not reasonably assured to the Trustee by the
security afforded to it by the terms of this Agreement, the Trustee may require
reasonable indemnity against such cost, expense or liability as a condition
to
such proceeding;
(vi) the
Trustee shall not be accountable, shall have no liability and makes no
representation as to any acts or omissions hereunder of the Servicer until
such
time as the Trustee may be required to act as the Servicer pursuant to Section
7.02 hereof and thereupon only for the acts or omissions of the Trustee as
a
successor Servicer;
(vii) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, nominees, attorneys or a
custodian, and shall not be responsible for any willful misconduct or negligence
on the part of any agent, nominee, attorney or custodian appointed by the
Trustee in good faith; and
(viii) the
right
of the Trustee to perform any discretionary act enumerated in this Agreement
shall not be construed as a duty, and the Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of such
act.
SECTION
8.03. Trustee
Not Liable for Certificates or Mortgage Loans.
The
recitals contained herein and in the Certificates (other than the authentication
and countersignature on the Certificates) shall be taken as the statements
of
the Seller, and the Trustee assumes no responsibility for the correctness of
the
same. The Trustee makes no representation or warranty as to the validity or
sufficiency of this Agreement or of the Certificates (other than the signature
and countersignature on the Certificates) or of any Mortgage Loan or related
document or of MERS or the MERS System. The Trustee shall not at any time have
any responsibility or liability for or with respect to the legality, validity
and enforceability of the Financial Guaranty Insurance Policy, any Mortgage
or
any Mortgage Loan, or the perfection and priority of any Mortgage or the
maintenance of any such perfection and priority, or for or with respect to
the
sufficiency of the Trust or the ability to generate the payments to be
distributed to Certificateholders under this Agreement, including, without
limitation: the existence, condition and ownership of any Mortgaged Property;
the existence and enforceability of any hazard insurance thereon (other than
if
the Trustee shall assume the duties of the Servicer pursuant to Section 7.02
hereof); the validity of the assignment of any Mortgage Loan to the Trustee
or
of any intervening assignment; the completeness of any Mortgage Loan; the
performance or enforcement of any Mortgage Loan (other than if the Trustee
shall
assume the duties of the Servicer pursuant to Section 7.02 hereof); the
compliance by the Depositor or the Seller with any warranty or representation
made under this Agreement or in any related document or the accuracy of any
such
warranty or representation prior to the Trustee’s receipt of notice or other
discovery of any non-compliance therewith or any breach thereof; the acts or
omissions of the Servicer (other than if the Trustee shall assume the duties
of
the Servicer pursuant to Section 7.02 hereof, and then only for the acts or
omissions of the Trustee as the successor Servicer), any Mortgagor; or any
action by the Trustee taken at the instruction of the Servicer (other than
if
the Trustee shall assume the duties of the Servicer pursuant to Section 7.02
hereof, and then only for the actions of the Trustee as the successor Servicer);
provided,
however,
that
the foregoing shall not relieve the Trustee of its obligation to perform its
duties under this Agreement, including, without limitation, the Trustee’s duty
to review the Mortgage Files, if so required pursuant to Section 2.01 of this
Agreement.
111
SECTION
8.04. Trustee
and Custodian May Own Certificates.
The
Trustee, and the Custodian in their respective individual capacities, or in
any
capacity other than as Trustee, or Custodian, hereunder, may become the owner
or
pledgee of any Certificates with the same rights as they would have if they
were
not Trustee or Custodian, as applicable, and may otherwise deal with the parties
hereto.
SECTION
8.05. Trustee’s
Fees and Expenses.
The
Trustee shall be compensated by the Trustee Fee as compensation for its services
hereunder. In addition, the Trustee will be entitled to recover from the
Distribution Account pursuant to Section 4.03(a) all reasonable out-of-pocket
expenses, disbursements and advances, including without limitation, in
connection with any filing that the Trustee is required to make under Section
3.06 hereof, any Event of Default, any breach of this Agreement or any claim
or
legal action (including any pending or threatened claim or legal action)
incurred or made by the Trustee in the performance of its duties or the
administration of the trusts hereunder (including, but not limited to, the
performance of its duties under Section 2.03 hereof) or under the Financial
Guaranty Insurance Policy (including the reasonable compensation, expenses
and
disbursements of its counsel) except any such expense, disbursement or advance
as may arise from its negligence or intentional misconduct or which is
specifically designated herein as the responsibility of the Depositor, the
Seller, or the Certificateholders hereunder. If funds in the Distribution
Account are insufficient therefor, the Trustee shall recover such expenses
from
future collections on the Mortgage Loans or as otherwise agreed by the
Certificateholders. Such compensation and reimbursement obligation shall not
be
limited by any provision of law in regard to the compensation of a trustee
of an
express trust.
SECTION
8.06. Eligibility
Requirements for Trustee
The
Trustee hereunder shall each at all times be an entity duly organized and
validly existing under the laws of the United States of America or any state
thereof, authorized under such laws to exercise corporate trust powers, and
shall each have a combined capital and surplus of at least $50,000,000, a
minimum long-term debt rating in the third highest rating category by each
Rating Agency, a minimum short-term debt rating in the second highest rating
category by each Rating Agency, and shall each be subject to supervision or
examination by federal or state authority. If such entity publishes reports
of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section 8.06, the combined capital and surplus of such entity shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. The principal office of the Trustee (other than the
initial Trustee) shall be in a state with respect to which an Opinion of Counsel
has been delivered to such Trustee at the time such Trustee is appointed Trustee
to the effect that the Trust will not be a taxable entity under the laws of
such
state. In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 8.06, the Trustee shall resign immediately
in the manner and with the effect specified in Section 8.07 hereof.
112
SECTION
8.07. Resignation
or Removal of Trustee
The
Trustee (including the Trustee as Certificate Registrar) may at any time resign
and be discharged from the trust hereby created by giving written notice thereof
to the Trustee, the Depositor, the Seller, the Certificate Insurer and the
Rating Agencies. Upon receiving such notice of resignation of the Trustee,
the
Depositor shall promptly appoint a successor Trustee that meets the requirements
in Section 8.06 by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so appointed and
having accepted appointment within 30 days after the giving of such notice
of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If
at any
time the Trustee (a) shall cease to be eligible in accordance with the
provisions of Section 8.06 hereof, (b) shall be legally unable to act, or shall
be adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation or (c) shall fail to deliver to the Depositor and
the Sponsor the information, attestations or reports required pursuant to
Section 8.01(b) through (d) hereto, then the Depositor may remove the Trustee.
If the Depositor removes the Trustee under the authority of the immediately
preceding sentence, the Depositor shall promptly appoint a successor Trustee
that meets the requirements of Section 8.06, by written instrument, in
triplicate, one copy of which instrument shall be delivered to the Trustee
so
removed, and one copy to the successor Trustee and one copy to the Certificate
Insurer.
The
Majority Certificateholders may at any time remove the Trustee by written
instrument or instruments delivered to the Depositor and the Trustee; the
Depositor or the Trustee shall thereupon use its best efforts to appoint a
successor Trustee in accordance with this Section.
Any
resignation or removal of the Trustee and appointment of a successor Trustee
pursuant to any of the provisions of this Section 8.07 shall not become
effective until acceptance of appointment by the successor Trustee as provided
in Section 8.08 hereof. As long as the Financial Guaranty Insurance Policy
is in
effect, the Trustee will send a written notice to the Certificate Insurer of
any
such resignation, removal or appointment.
113
SECTION
8.08. Successor
Trustee
Any
successor Trustee appointed as provided in Section 8.07 hereof shall execute,
acknowledge and deliver to the Depositor and the Seller and to its predecessor
Trustee (i) an instrument accepting such appointment hereunder and (ii) the
certification required pursuant to the first sentence of Section 8.02(b) hereof,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective, and such successor Trustee without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Trustee. The Depositor, the Seller, and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
Trustee, as applicable, all such rights, powers, duties and
obligations.
No
successor Trustee shall accept appointment as provided in this Section 8.08
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 8.06 hereof and the appointment of such
successor Trustee shall not result in a downgrading of the Senior Certificates
by each Rating Agency, as evidenced by a letter from such Rating
Agency.
Upon
acceptance of appointment by a successor Trustee as provided in this Section
8.08, the successor Trustee shall mail notice of such appointment hereunder
to
all Holders of Certificates at their addresses as shown in the Certificate
Register, to the Certificate Insurer and to each Rating Agency.
SECTION
8.09. Merger
or Consolidation of Trustee
Any
entity into which the Trustee may be merged or converted or with which it may
be
consolidated, or any entity resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any entity succeeding
to
all or substantially all of the business of the Trustee shall be the successor
of the Trustee hereunder, provided such entity shall be eligible under the
provisions of Section 8.06 and 8.08 hereof, without the execution or filing
of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.
SECTION
8.10. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding
any other provisions of this Agreement, at any time, for the purpose of meeting
any legal requirements of any jurisdiction in which any part of the Trust or
any
Mortgaged Property may at the time be located, the Depositor and the Trustee
acting jointly shall have the power, and the Trustee shall, and shall instruct
the Depositor to, at the expense of the Trust Fund, execute and deliver all
instruments to appoint one or more Persons approved by the Trustee to act as
co-trustee or co-trustees, jointly with the Trustee, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders
and
the Certificate Insurer, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section 8.10, such powers, duties,
obligations, rights and trusts as the Depositor and the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor Trustee under Section
8.06 hereof, and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 8.08
hereof.
114
Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) all
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed (whether
as
Trustee hereunder or as successor to the Servicer hereunder), the Trustee shall
be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no
trustee hereunder shall be held personally liable by reason of any act or
omission of any other trustee hereunder; and
(iii) the
Depositor and the Trustee, acting jointly may at any time accept the resignation
of or remove any separate trustee or co-trustee.
Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Agreement and the conditions of this Article
VIII. Each separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Trustee or separately, as
may
be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the
Depositor.
Any
separate trustee or co-trustee may, at any time, constitute the Trustee, its
agent or attorney-in-fact, with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement
on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Trustee, to the extent permitted by law, without the appointment of a new or
successor Trustee.
SECTION
8.11. Limitation
of Liability.
The
Certificates are executed by the Trustee, not in its individual capacity but
solely as Trustee of the Trust, in the exercise of the powers and authority
conferred and vested in it by this Agreement. Each of the undertakings and
agreements made on the part of the Trustee in the Certificates is made and
intended not as a personal undertaking or agreement by the Trustee but is made
and intended for the purpose of binding only the Trust.
115
SECTION
8.12. Trustee
May Enforce Claims Without Possession of Certificates.
(a) All
rights of action and claims under this Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of any of the
Certificates or the production thereof in any proceeding relating thereto,
and
such proceeding instituted by the Trustee shall be brought in its own name
or in
its capacity as Trustee for the benefit of all Holders of such Certificates,
subject to the provisions of this Agreement. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursement and advances of the Trustee, its agents and counsel, be for the
ratable benefit or the Certificateholders in respect of which such judgment
has
been recovered.
(b) The
Trustee shall afford the Seller, the Depositor, the Certificate Insurer and
each
Certificateholder upon reasonable notice during normal business hours at its
Corporate Trust Office or other office designated by the Trustee, access to
all
records maintained by the Trustee in respect of its duties hereunder and access
to officers of the Trustee responsible for performing such duties. Upon request,
the Trustee shall furnish the Depositor, the Certificate Insurer and any
requesting Certificateholder with its most recent audited financial statements.
The Trustee shall cooperate fully with the Seller, the Depositor, the
Certificate Insurer and such Certificateholder and shall, subject to the first
sentence of this Section 8.12(b), make available to the Seller, the Depositor,
the Certificate Insurer and such Certificateholder for review and copying such
books, documents or records as may be requested with respect to the Trustee’s
duties hereunder. The Seller, the Depositor, the Certificate Insurer and the
Certificateholders shall not have any responsibility or liability for any action
or failure to act by the Trustee and are not obligated to supervise the
performance of the Trustee under this Agreement or otherwise.
SECTION
8.13. Suits
for Enforcement.
In
case
an Event of Default or a default by the Depositor hereunder shall occur and
be
continuing, the Trustee may proceed to protect and enforce its rights and the
rights of the Certificateholders under this Agreement, as the case may be,
by a
suit, action or proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in this Agreement
or
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy, as the Trustee,
being
advised by counsel, and subject to the foregoing, shall deem most effectual
to
protect and enforce any of the rights of the Trustee, the Certificate Insurer
and the Certificateholders.
SECTION
8.14. Waiver
of Bond Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee post a bond or other surety with any court, agency
or
body whatsoever.
116
SECTION
8.15. Waiver
of Inventory, Accounting and Appraisal Requirement.
The
Trustee shall be relieved of, and each Certificateholder hereby waives, any
requirement of any jurisdiction in which the Trust, or any part thereof, may
be
located that the Trustee file any inventory, accounting or appraisal of the
Trust with any court, agency or body at any time or in any manner
whatsoever.
SECTION
8.16. Appointment
of Custodians.
The
Trustee may, and at the direction of the Depositor shall, appoint one or more
custodians to hold all or a portion of the related Mortgage Files as agent
for
the Trustee, by entering into a custodial agreement. The custodian may at any
time be terminated and a substitute custodian appointed therefor by the Trustee.
Subject to this Article VIII, the Trustee agrees to comply with the terms of
each custodial agreement and to enforce the terms and provisions thereof against
the custodian for the benefit of the Certificateholders and the Certificate
Insurer having an interest in any Mortgage File held by such custodian. Each
custodian shall be a depository institution or trust company subject to
supervision by federal or state authority, shall have combined capital and
surplus of at least $15,000,000 and shall be qualified to do business in the
jurisdiction in which it holds any Mortgage File. The initial custodian of
the
Mortgage Loans shall be The Bank of New York. The Bank of New York shall be
compensated by the Trust Fund for its services as custodian.
SECTION
8.17. Indemnification
The
Trustee and its respective directors, officers, employees and agents shall
be
entitled to indemnification from the Trust Fund incurred hereunder or under
or
with respect to any Certificate, the Custodial Agreement, the Servicing
Agreement or under or pursuant to the Mortgage Loan Purchase Agreement, without
negligence or willful misconduct on the Trustee’s part, arising out of, or in
connection with, the acceptance or administration of the trusts created
hereunder or in connection with the performance of the Trustee’s duties
hereunder including the costs and expenses of defending themselves against
any
claim in connection with the exercise or performance of any of their powers
or
duties hereunder, provided
that:
(i) with
respect to any such claim, the Trustee shall have given the Depositor written
notice thereof promptly after the Trustee shall have knowledge thereof;
and
(ii) notwithstanding
anything to the contrary in this Section 8.17, the Trust Fund shall not be
liable for settlement of any such claim by the Trustee entered into without
the
prior consent of the Depositor, which consent shall not be unreasonably
withheld.
The
provisions of this Section 8.17 shall survive any termination of this Agreement
and the resignation or removal of the Trustee and shall be construed to include,
but not be limited to any loss, liability or expense under any environmental
law.
117
ARTICLE
IX
REMIC
ADMINISTRATION
SECTION
9.01. REMIC
Administration.
(a) As
set
forth in the Preliminary Statement to this Agreement, the Trustee shall elect
to
treat each REMIC created hereby as a REMIC for federal tax purposes. The Trustee
shall sign and file such elections on Form 1066 or other appropriate federal
tax
or information return for the taxable year ending on the last day of the
calendar year in which the Certificates are issued. The regular interests in
each REMIC created hereunder and the related residual interest shall be as
designated in the Preliminary Statement. Following the Closing Date, the Trustee
shall apply to the Internal Revenue Service for an employer identification
number for each REMIC created hereunder by means of a Form SS-4 or other
acceptable method and shall file a Form 8811 with the Internal Revenue
Service.
(b) The
Closing Date is hereby designated as the “Startup Day” of each REMIC created
hereunder within the meaning of section 860G(a)(9) of the Code. The latest
possible maturity date for purposes of Treasury Regulation 1.860G-1(a)(4) will
be the Latest Possible Maturity Date.
(c) Except
as
provided in subsection (d) of this Section 9.01, the Seller shall pay any and
all tax related expenses (not including taxes) of each REMIC created hereunder,
including but not limited to any professional fees or expenses related to audits
or any administrative or judicial proceedings with respect to any such REMIC
that involve the Internal Revenue Service or state tax authorities, but only
to
the extent that (i) such expenses are ordinary or routine expenses, including
expenses of a routine audit but not expenses of litigation (except as described
in (ii)); or (ii) such expenses or liabilities (including taxes and penalties)
are attributable to the negligence or willful misconduct of the Trustee in
fulfilling its respective duties hereunder (including the Trustee’s duties as
tax return preparer).
(d) The
Trustee shall prepare and file, and the Trustee shall sign all of the federal
and state tax and information returns of each REMIC created hereunder
(collectively, the “Tax
Returns”)
as the
direct representative. The expenses of preparing and filing such Tax Returns
shall be borne by the Trustee. Notwithstanding the foregoing, the Trustee shall
have no obligation to prepare, file or otherwise deal with partnership tax
information or returns. In the event that partnership tax information or returns
are required by the Internal Revenue Service, the Seller, at its own cost and
expense, will prepare and file all necessary returns.
(e) The
Trustee shall perform on behalf of each REMIC created hereunder all reporting
and other tax compliance duties that are the responsibility of each such REMIC
under the Code, the REMIC Provisions or other compliance guidance issued by
the
Internal Revenue Service or any state or local taxing authority. Among its
other
duties, if required by the Code, the REMIC Provisions or other such guidance,
the Trustee, shall provide (i) to the Treasury or other governmental authority
such information as is necessary for the application of any tax relating to
the
transfer of a Residual Certificate to any disqualified organization and (ii)
to
the Certificateholders such information or reports as are required by the Code
or REMIC Provisions.
118
(f) The
Trustee (to the extent that the affairs of the REMICs are within such Person’s
control and the scope of its specific responsibilities under the Agreement)
and
the Holders of Certificates shall take any action or cause any REMIC created
hereunder to take any action necessary to create or maintain the status of
any
REMIC created hereunder as a REMIC under the REMIC Provisions and shall assist
each other as necessary to create or maintain such status. None of the Trustee,
or the Holder a Residual Certificate shall take any action, cause any REMIC
created hereunder to take any action or fail to take (or fail to cause to be
taken) any action that, under the REMIC Provisions, if taken or not taken,
as
the case may be, could result in an Adverse REMIC Event unless the Trustee
has
received an Opinion of Counsel (at the expense of the party seeking to take
such
action) to the effect that the contemplated action will not result in an Adverse
REMIC Event. In addition, prior to taking any action with respect to any REMIC
created hereunder or the assets therein, or causing any such REMIC to take
any
action which is not expressly permitted under the terms of this Agreement,
any
Holder of a Residual Certificate will consult with the Trustee, or its designee,
in writing, with respect to whether such action could cause an Adverse REMIC
Event to occur with respect to any such REMIC, and no such Person shall take
any
such action or cause any REMIC created hereunder to take any such action as
to
which the Trustee has advised it in writing that an Adverse REMIC Event could
occur.
(g) Each
Holder of a Residual Certificate shall pay when due any and all taxes imposed
on
any REMIC created hereunder in which it owns the residual interest by federal
or
state governmental authorities. To the extent that such Trust taxes are not
paid
by such Residual Certificateholder, the Trustee shall pay any remaining REMIC
taxes out of current or future amounts otherwise distributable to such Holder
or, if no such amounts are available, out of other amounts held in the
Distribution Account, and shall reduce amounts otherwise payable to holders
of
regular interests in such REMIC, as the case may be.
(h) The
Trustee shall, for federal income tax purposes, maintain books and records
with
respect to each REMIC created hereunder on a calendar year and on an accrual
basis.
(i) No
additional contributions of assets shall be made to any REMIC created hereunder,
except as expressly provided in this Agreement with respect to eligible
substitute mortgage loans.
(j) The
Trustee, shall not enter into any arrangement by which REMIC created hereunder
will receive a fee or other compensation for services.
(k) The
Trustee shall treat the Basis Risk Reserve Fund as outside reserve funds within
the meaning of Treasury Regulation Section 1.860G-2(h). The Basis Risk Reserve
Fund X-1 Subaccount and the Basis Risk Reserve Fund X-2A1B Subaccount shall
be
treated as being beneficially owned by the holders of the Class X-1 Certificates
and the Class X-2A1B Certificates, respectively. The Trustee shall treat the
rights of the Holders of the MTA and LIBOR Certificates to receive distributions
from the related Subaccount of the Basis Risk Reserve Fund to cover Basis Risk
Shortfalls as payments under a cap contract written by the Holders of the Class
X-1 Certificates, in the case of the Class 1-A1A, Class 1-A1B, Class 2-A1A
and
Class 2-A1C Certificates and the Subordinate Certificates, and the Class X-2A1B
Certificates, in the case of the Class 2-A1B Certificates. Amounts deposited
into the Basis Risk Reserve Fund X-1 Subaccount shall be treated for federal
income tax purposes as amounts distributed on the Class X-1 Certificates,
respectively. Thus, the Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B,
Class 2-A1C, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, Class B-6,
Class B-7, Class B-8, Class B-9, Class B-10, Class B-11 and Class B-12
Certificates shall be treated as representing not only ownership of regular
interests in a REMIC, but also ownership of an interest in an interest rate
cap
contract. For purposes of determining the issue prices of the Certificates,
the
interest rate cap contracts shall be assumed to have a zero value unless and
until required otherwise by an applicable taxing authority.
119
(l) For
federal income tax purposes, and with respect to any of the first three
Distribution Dates, amounts distributed with respect to the MT-1-X Interest
shall be deemed to have been distributed in respect of the Class X-1
Certificates and then deposited in the Basis Risk Reserve Fund X-1 Subaccount.
The amount so deposited shall be deemed to have then been distributed in the
following order of priority: (i) first, to the Class 1-A1A, Class 1-A1B, Class
2-A1A and Class 2-A1C Certificates, an amount equal to the excess, if any,
of
the interest accrued thereon at the stated Pass-Through Rates over the interest
that would have accrued thereon had the Pass-Through Rate on each such Class
equaled the interest rate on the MT-1A1A Interest for such Distribution Date;
(ii) second, to the Class X-1 Certificate, in an amount equal to the excess,
if
any, of the interest accrued thereon at the stated Pass-Through Rate over the
amount of interest that would have accrued thereon if the reference to “Group 1
Net WAC Cap” in the definition of “Pass-Through Rate” were replaced with a
reference to the interest rate on the MT-1A1A Interest for such Distribution
Date; and (iii) finally, (A) first to the Class X-1 Certificate, in an amount
equal to the excess, if any, of the interest accrued thereon at the stated
Pass-Through Rate over the amount of interest that would have accrued thereon
if
the reference to “Subordinate Net WAC” in the definition of “Pass-Through Rate”
were replaced with a reference to the interest rate on the MT-B1 Interest for
such Distribution date, and then (B) to each Class of Subordinate Certificates,
in order of their seniority, an amount equal to the excess, if any, of the
interest accrued thereon at the stated Pass-Through Rate over the interest
that
would have accrued thereon had the Pass-Through Rate on each such Class equaled
the interest rate for the MT-B1 Interest for such Distribution
Date.
(m) For
federal income tax purposes, and with respect to any of the first three
Distribution Dates, amounts distributed with respect to the MT-1-X Interest
shall be deemed to have been distributed in respect of the Class X-2A1B
Certificates and then deposited in the Basis Risk Reserve Fund X-2A1B
Subaccount. The amount so deposited shall be deemed to have then been
distributed in the following order of priority: (i) first, to the Class 2-A1B
Certificates, an amount equal to the excess, if any, of the interest accrued
thereon at the stated Pass-Through Rates over the interest that would have
accrued thereon had the Pass-Through Rate on each such Class equaled the
interest rate on the MT-1A1A Interest for such Distribution Date and (ii)
second, to the Class X-2A1B Certificate, in an amount equal to the excess,
if
any, of the interest accrued thereon at the stated Pass-Through Rate over the
amount of interest that would have accrued thereon if the reference to “Group 2
Net WAC Cap” in the definition of “Pass-Through Rate” were replaced with a
reference to the interest rate on the MT-1A1A Interest for such Distribution
Date.
120
SECTION
9.02. Prohibited
Transactions and Activities.
None
of
the Depositor, the Servicer or the Trustee shall sell, dispose of, or substitute
for any of the Mortgage Loans, except in a disposition pursuant to (i) the
foreclosure of a Mortgage Loan, (ii) the bankruptcy of the Trust Fund,
(iii) the termination of the REMICs created hereunder pursuant to Article X
of
this Agreement, (iv) a substitution pursuant to Article II hereof or (v) a
repurchase of Mortgage Loans as contemplated hereunder, nor acquire any assets
for any REMIC created hereunder, nor sell or dispose of any investments in
the
Distribution Account for gain, nor accept any contributions to any REMIC created
hereunder after the Closing Date, unless it has received an Opinion of Counsel
(at the expense of the party causing such sale, disposition, or substitution)
that such disposition, acquisition, substitution, or acceptance will not (a)
affect adversely the status of any REMIC created hereunder as a REMIC or of
the
interests therein other than a Residual Certificate as the “residual interest”
therein, (b) affect the distribution of interest or principal on the
Certificates, (c) result in the encumbrance of the assets transferred or
assigned to the Trust Fund (except pursuant to the provisions of this Agreement)
or (d) cause any REMIC created hereunder to be subject to a tax on prohibited
transactions or prohibited contributions pursuant to the REMIC
Provisions.
ARTICLE
X
TERMINATION
SECTION
10.01. Termination.
(a) The
respective obligations and responsibilities of the Seller, the Depositor, and
the Trustee created hereby (other than the obligation of the Trustee to make
certain payments to Certificateholders after the final Distribution Date and
the
obligation of the Servicer to send certain notices as hereinafter set forth)
shall terminate upon the earliest of (i) the Distribution Date on which the
Class Principal Balance of each Class of Certificates has been reduced to zero
and no Certificate Insurer Reimbursement Amounts are owed to the Certificate
Insurer, (ii) the final payment or other liquidation of the last Mortgage
Loan, (iii) the optional purchase of the Mortgage Loans as described in the
following paragraph and (iv) the Latest Possible Maturity Date.
Notwithstanding the foregoing, in no event shall the trust created hereby
continue beyond the expiration of 21 years from the death of the last
survivor of the descendants of Joseph P. Kennedy, the late ambassador of
the United States to the Court of St. James’s, living on the date
hereof.
121
Following
the date on which the aggregate of the Stated Principal Balances of the Mortgage
Loans (after giving effect to scheduled payments of principal due during the
related Due Period, to the extent received or advanced, and unscheduled
collections of principal received during the related Prepayment Period) on
such
date is equal to or less than 10% of the Cut-off Date Collateral Balance (the
“Call
Option Date”),
the
Servicer may, at its option, terminate this Agreement with regard to such
Mortgage Loans by purchasing, on the next succeeding Distribution Date, all
of
the outstanding Mortgage Loans and related REO Properties at a price equal
to
(A) the greater of (i) the aggregate Stated Principal Balance of the Mortgage
Loans, as applicable, (after giving effect to scheduled payments of principal
due during the related Due Period, to the extent received or advanced, and
unscheduled collections of principal received during the related Prepayment
Period) and the appraised value of the REO Properties and (ii) the fair market
value of the Mortgage Loans and REO Properties (as determined and as agreed
upon
by (x) the Servicer and (y) the Holders of a majority in Percentage Interest
of
the Class A-R-II Certificates in their good faith business judgment as of the
close of business on the third Business Day next preceding the date upon which
notice of any such termination is furnished to the Certificateholders pursuant
to Section 10.01(b)), plus, (B) in each case, accrued and unpaid interest
thereon at the weighted average of the Mortgage Rates of the Mortgage Loans
through the end of the Due Period preceding the final Distribution Date, plus
any unreimbursed Servicing Advances and Advances and any unpaid Servicing Fees
allocable to such Mortgage Loans and REO Properties and all amounts, if any,
then due and owing to the Trustee and the Certificate Insurer under this
Agreement (the “Termination
Price”);
provided,
however,
such
option may only be exercised if the Termination Price is sufficient to result
in
the payment of all interest accrued on, as well as amounts necessary to retire
the Class Principal Balance of each Class of Certificates issued pursuant to
this Agreement. The fair market value of the Mortgage Loans and REO Properties
shall be required to be made and agreed upon by the Servicer and the Holders
of
a majority in Percentage Interest of the Class A-R-II Certificates as provided
in (ii) above in their good faith business judgment, and such determination
shall take into consideration an appraisal of the value of the Mortgage Loans
and REO Properties conducted by an independent appraiser mutually agreed upon
by
the Servicer and the Holders of a majority in Percentage Interest of the Class
A-R-II Certificates in their reasonable discretion, such appraisal to be
obtained by the Holders of a majority in Percentage Interest of the Class A-R-II
Certificates at their expense, and (A) such appraisal shall be obtained at
no
expense to the Trustee and (B) the Trustee may conclusively rely on, and shall
be protected in relying on, such fair market value determination.
In
connection with any such purchase pursuant to the preceding paragraph, the
Servicer shall remit to the Trustee for deposit in the Distribution Account
all
amounts then on deposit in the Collection Account, which deposit shall be deemed
to have occurred immediately preceding such purchase.
No
such purchase by the Servicer will be permitted without the consent of the
Certificate Insurer if a draw on the Financial Guaranty Insurance Policy will
be
made or if any amounts due to the Certificate Insurer would remain unreimbursed
on the final Distribution Date.
(b) Notice
of
any termination pursuant to the second paragraph of Section 10.01(a), specifying
the Distribution Date (which shall be a date that would otherwise be a
Distribution Date) upon which the Certificateholders may surrender their
Certificates to the Certificate Registrar for payment of the final distribution
and cancellation, shall be given promptly by the Trustee upon the Trustee
receiving notice of such date from the Servicer by letter to the
Certificateholders mailed not earlier than the 10th
day and
not later than the 19th
day of
the month immediately preceding the month of such final distribution specifying
(1) the Distribution Date upon which final distribution of the Certificates
will be made upon presentation and surrender of such Certificates at the office
or agency of the Certificate Registrar therein designated, (2) the amount
of any such final distribution and (3) that the Record Date otherwise
applicable to such Distribution Date is not applicable, distributions being
made
only upon presentation and surrender of the Certificates at the office or agency
of the Certificate Registrar therein specified. The Trustee shall give such
notice to the Certificate Insurer and the Certificate Registrar at the time
such
notice is given to Holders of the Certificates. Upon any such termination,
the
duties of the Certificate Registrar with respect to the Certificates shall
terminate and the Trustee shall terminate the Distribution Account and any
other
account or fund maintained with respect to the Certificates, subject to the
Trustee’s obligation hereunder to hold all amounts payable to Certificateholders
in trust without interest pending such payment.
122
(c) Upon
presentation and surrender of the Certificates, the Trustee shall cause to
be
distributed to the Holders of the Certificates on the Distribution Date for
such
final distribution, in proportion to the Percentage Interests of their
respective Class and to the extent that funds are available for such purpose,
an
amount equal to the amount required to be distributed to such Holders in
accordance with the provisions of Section 5.01 hereof for such Distribution
Date.
(d) In
the
event that all Certificateholders shall not surrender their Certificates for
final payment and cancellation on or before such final Distribution Date, the
Trustee shall promptly following such date cause all funds in the Distribution
Account not distributed in final distribution to Certificateholders to be
withdrawn therefrom and credited to the remaining Certificateholders by
depositing such funds in a separate account for the benefit of such
Certificateholders, and the Trustee shall give a second written notice to the
remaining Certificateholders to surrender their Certificates for cancellation
and receive the final distribution with respect thereto. If within nine months
after the second notice all the Certificates shall not have been surrendered
for
cancellation, the Servicer shall be entitled to all unclaimed funds and other
assets which remain subject hereto, and the Trustee upon transfer of such funds
shall be discharged of any responsibility for such funds, and the
Certificateholders shall look to the Servicer for payment.
(a) In
the
event the purchase option provided in Section 10.01 is exercised, the Trust
shall be terminated in accordance with the following additional
requirements:
(i) The
Trustee shall sell any remaining assets of the Trust Fund for cash and, within
90 days of such sale, shall distribute to (or credit to the account of) the
Certificateholders the proceeds of such sale together with any cash on hand
(less amounts retained to meet claims) in complete liquidation of the Trust
Fund
and any REMIC created hereunder; and
(ii) The
Trustee shall attach a statement to the final federal income tax return for
each
REMIC created hereunder stating that pursuant to Treasury Regulation
Sec.1.860F-1, the first day of the 90-day liquidation period for such REMIC
was
the date on which the Trustee sold the assets of the Trust Fund and shall
satisfy all requirements of a qualified liquidation under Section 860F of the
Code and any regulations thereunder as evidenced by an Opinion of Counsel
delivered to the Trustee and the Certificate Insurer obtained at the expense
of
the Seller.
(b) By
their
acceptance of Certificates, the Holders thereof hereby agree to appoint the
Trustee as their attorneys in fact to undertake the foregoing
steps.
123
ARTICLE
XI
[RESERVED]
ARTICLE
XII
MISCELLANEOUS
PROVISIONS
SECTION
12.01. Amendment.
This
Agreement may be amended from time to time by the Seller, the Depositor, and
the
Trustee without the consent of the Certificateholders and, with respect to
any
amendment that adversely affects the interests of any of the Certificate Insurer
or the Holders of the Insured Certificates, with the prior written consent
of
the Certificate Insurer, (i) to cure any ambiguity, (ii) to correct or
supplement any provisions herein which may be defective or inconsistent with
any
other provisions herein, (iii) to make any other provisions with respect to
matters or questions arising under this Agreement, which shall not be
inconsistent with the provisions of this Agreement, or (iv) to conform the
terms
hereof to the description thereof provided in the Prospectus; provided,
however,
that
any such action listed in clause (i) through (iii) above shall not
adversely affect in any material respect the interests of any Certificateholder;
provided,
further,
that
any such action listed in (i) through (ii) above shall be deemed not to
adversely affect in any material respect the interests of any Certificateholder,
if evidenced by (i) written notice to the Depositor, the Seller, the
Certificate Insurer and the Trustee from each Rating Agency that such action
will not result in the reduction or withdrawal of the rating of any outstanding
Class of Certificates with respect to which it is a Rating Agency (without
regard to the Financial Guaranty Insurance Policy) or (ii) an Opinion of
Counsel stating that such amendment shall not adversely affect in any material
respect the interests of any Certificateholder (without taking into account
the
benefits under the Financial Guaranty Insurance Policy), is permitted by the
Agreement and all the conditions precedent, if any have been complied with,
delivered to the Trustee and the Certificate Insurer.
In
addition, this Agreement may be amended from time to time by Seller, the
Depositor, and the Trustee with the consent of the Majority Certificateholders
and the Certificate Insurer (if the proposed amendment adversely affects in
any
respect the rights and interest of the Certificate Insurer) for the purpose
of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Holders of Certificates; and subject, in the case of any amendment or
modification to Section 5.01(a) hereof, to the consent of the Bank of New York,
as Custodian; provided,
however,
that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
delay the timing of, payments on the Certificates that are required to be made
on any Certificate without the consent of the Holder of such Certificate,
(y) adversely affect in any material respect the interests of the Holders
of any Class of Certificates in a manner other than as described in clause
(x)
above, without the consent of the Holders of Certificates of such Class
evidencing at least a 66⅔% Percentage Interest in such Class, or (z) reduce
the percentage of Voting Rights required by clause (y) above without the
consent of the Holders of all Certificates of such Class then outstanding.
Upon
approval of an amendment, a copy of such amendment shall be sent to each Rating
Agency.
124
Notwithstanding
any provision of this Agreement to the contrary, the Trustee shall not consent
to any amendment to (1) this Agreement unless it shall have first received
an
Opinion of Counsel, delivered by and at the expense of the Person seeking
such
Amendment (unless such Person is the Trustee, in which case the Trustee shall
be
entitled to be reimbursed for such expenses by the Trust pursuant to Section
8.05 hereof), to the effect that such amendment will not result in an Adverse
REMIC Event and that the amendment is being made in accordance with the terms
hereof, such amendment is permitted by this Agreement and all conditions
precedent, if any, have been complied with and (2) the Reconstitution Agreement
unless it shall first have received the consent of the Certificate
Insurer.
Promptly
after the execution of any such amendment the Trustee shall furnish, at the
expense of the Person that requested the amendment if such Person is the Seller
(but in no event at the expense of the Trustee), otherwise at the expense of
the
Trust, a copy of such amendment and the Opinion of Counsel referred to in the
immediately preceding paragraph to the Servicer, the Certificate Insurer and
each Rating Agency.
It
shall
not be necessary for the consent of Certificateholders under this
Section 12.01 to approve the particular form of any proposed amendment;
instead it shall be sufficient if such consent shall approve the substance
thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Certificateholders shall be subject
to
such reasonable regulations as the Trustee may prescribe.
The
Trustee may, but shall not be obligated to, enter into any amendment pursuant
to
this 12.01 Section that affects its rights, duties and immunities under
this Agreement or otherwise.
SECTION
12.02. Recordation
of Agreement; Counterparts.
To
the
extent permitted by applicable law, this Agreement is subject to recordation
in
all appropriate public offices for real property records in all the counties
or
other comparable jurisdictions in which any or all of the Mortgaged Properties
are situated, and in any other appropriate public recording office or elsewhere,
such recordation to be effected by the Trustee at the expense of the Trust,
but
only upon direction of Certificateholders accompanied by an Opinion of Counsel
to the effect that such recordation materially and beneficially affects the
interests of the Certificateholders and the Certificate Insurer.
For
the
purpose of facilitating the recordation of this Agreement as herein provided
and
for other purposes, this Agreement may be executed simultaneously in any number
of counterparts, each of which counterparts shall be deemed to be an original,
and such counterparts shall together constitute but one and the same
instrument.
SECTION
12.03. Limitation
on Rights of Certificateholders.
The
death
or incapacity of any Certificateholder shall not (i) operate to terminate
this Agreement or the Trust, (ii) entitle such Certificateholder’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust or
(iii) otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
125
Except
as
expressly provided for herein, no Certificateholder shall have any right to
vote
or in any manner otherwise control the operation and management of the Trust,
or
the obligations of the parties hereto, nor shall anything herein set forth
or
contained in the terms of the Certificates be construed so as to constitute
the
Certificateholders from time to time as partners or members of an association;
nor shall any Certificateholder be under any liability to any third person
by
reason of any action taken by the parties to this Agreement pursuant to any
provision hereof.
No
Certificateholder shall have any right by virtue of any provision of this
Agreement to institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Agreement, unless such Holder previously shall
have given to the Trustee a written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of Certificates
entitled to at least 25% of the Voting Rights shall have made written request
upon the Trustee to institute such action, suit or proceeding in its own name
as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to
be
incurred therein or thereby, and the Trustee for 15 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding. It is understood and intended,
and expressly covenanted by each Certificateholder with every other
Certificateholder, and the Trustee, that no one or more Holders of Certificates
shall have any right in any manner whatever by virtue of any provision of this
Agreement to affect, disturb or prejudice the rights of the Holders of any
other
of such Certificates, or to obtain or seek to obtain priority over or preference
to any other such Holder, which priority or preference is not otherwise provided
for herein, or to enforce any right under this Agreement, except in the manner
herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this
Section 12.03, each and every Certificateholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
By
accepting its Insured Certificate, each Holder of an Insured Certificate agrees
that, unless a Certificate Insurer Default exists and is continuing, the
Certificate Insurer shall have the right to exercise all rights of the Holders
of the Insured Certificates under this Agreement (other than the right to
receive distributions on the Insured Certificates) without any further consent
of the Holders of the Insured Certificates and the Holders of the Insured
Certificates shall exercise any such rights only upon the written consent of
the
Certificate Insurer; provided,
however,
each
Holder of an Insured Certificate and the Certificate Insurer will have the
right
to receive statements and reports hereunder. Notwithstanding the foregoing,
the
Certificate Insurer shall have no power without the consent of the Owner of
each
Insured Certificate affected thereby to: (i) reduce in any manner the amount
of,
or delay the timing of, distributions of principal or interest required to
be
made hereunder or reduce the Percentage Interest of the Holders of the Insured
Certificates, the Certificate Interest Rate or the Termination Payment with
respect to any of the Insured Certificates; (ii) reduce the percentage of
Percentage Interests specified in Section 12.01 which are required to amend
this
Agreement; (iii) create or permit the creation of any lien against any part
of
the Trust Fund; (iv) modify any provision in any way which would permit an
earlier retirement of the Insured Certificates; or (v) amend this
sentence.
126
SECTION
12.04. Governing
Law; Jurisdiction.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE
STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER
THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH
SUCH LAWS.
SECTION
12.05. Notices.
All
directions, demands and notices hereunder shall be in writing and shall be
deemed to have been duly given if personally delivered at or mailed by first
class mail, postage prepaid, or by express delivery service, to (a) in the
case of the Seller and the Sponsor, to Greenwich Capital Financial Products,
Inc., 600 Steamboat Road, Greenwich, Connecticut06830, Attention: General
Counsel (telecopy number (203) 618-2132), or such other address or telecopy
number as may hereafter be furnished to the Depositor and the Trustee in writing
by the Seller and the Sponsor, (b) in the case of the Trustee, to U.S. Bank
National Association, One Federal Street, Boston Massachusetts, Attention:
HarborView 2006-1 (telecopy number (617) 603-6637), with a copy to the Corporate
Trust Office or such other address or telecopy number as may hereafter be
furnished to the Depositor and the Seller in writing by the Trustee, (c) in
the case of the Depositor, to Greenwich Capital Acceptance, Inc.,
600 Steamboat Road, Greenwich, Connecticut06830, Attention: Legal
(telecopy number (203) 618-2132), or such other address or telecopy number
as may be furnished to the Seller and the Trustee in writing by the Depositor
and (d) in the case of the Certificate Insurer, to Financial Security Assurance
Inc., 31 West 52nd
Street,
New York, New York10019, Attention: Surveillance Department (telecopy number
(212) 339-3518),
or such other address or telecopy number as may be furnished to the Depositor,
the Seller and the Trustee in writing by the Certificate Insurer.
Any
notice required or permitted to be mailed to a Certificateholder shall be given
by first class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Notice of any Event of Default shall be given by
telecopy and by certified mail. Any notice so mailed within the time prescribed
in this Agreement shall be conclusively presumed to have duly been given when
mailed, whether or not the Certificateholder receives such notice. A copy of
any
notice required to be telecopied hereunder shall also be mailed to the
appropriate party in the manner set forth above.
SECTION
12.06. Severability
of Provisions.
If
any
one or more of the covenants, agreements, provisions or terms of this Agreement
shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions of this Agreement
or of the Certificates or the rights of the Holders thereof.
127
SECTION
12.07. Article
and Section References.
All
article and section references used in this Agreement, unless otherwise
provided, are to articles and sections in this Agreement.
SECTION
12.08. Notices
to each Rating Agencies.
(a) The
Trustee shall be obligated to use its best reasonable efforts promptly to
provide notice to each Rating Agency with respect to each of the following
of
which a Responsible Officer of the Trustee has actual knowledge:
(i) any
material change or amendment to this Agreement;
(ii) the
occurrence of any Event of Default that has not been cured or
waived;
(iii) the
resignation or termination of the Servicer or the Trustee;
(iv) the
final
payment to Holders of the Certificates of any Class;
(v) any
change in the location of any Account; and
(vi) if
the
Trustee is acting as a successor Servicer pursuant to Section 7.02 hereof,
any
event that would result in the inability of the Trustee to make
Advances.
(b) The
Trustee shall promptly furnish or make available to each Rating Agency copies
of
each Distribution Date Statement described in Section 5.04 hereof.
(c) All
notices to the Rating Agencies provided for in this Agreement shall be in
writing and sent by first class mail, telecopy or overnight courier, as
follows:
Notwithstanding
any other provision of this Agreement, neither the Regular Certificateholders
nor the Trustee shall have any obligation to consent to any amendment or
modification of this Agreement unless they have been provided reasonable
security or indemnity against their out-of-pocket expenses (including reasonable
attorneys’ fees) to be incurred in connection therewith.
SECTION
12.10. Benefits
of Agreement.
Nothing
in this Agreement or in the Certificates, expressed or implied, shall give
to
any Person, other than the Certificateholders and the parties hereto and their
successors hereunder, any benefit or any legal or equitable right, remedy or
claim under this Agreement.
The
Certificate Insurer is an intended third-party beneficiary of this Agreement.
Any right conferred to the Certificate Insurer, other than the rights to receive
notices or documentation, shall be suspended after the occurrence and during
the
continuation of a Certificate Insurer Default. During any period of suspension,
the Certificate Insurer’s rights hereunder shall vest in the Holders of the
Insured Certificates (to the extent such Holders otherwise has such rights
hereunder). At such time as the Class Principal Balance of the Insured
Certificates has been reduced to zero and the Certificate Insurer has been
reimbursed for all amounts to which it is entitled hereunder, the Certificate
Insurer’s rights hereunder shall terminate.
SECTION
12.11. Acts
of Certificateholders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement to be given or taken by the Certificateholders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Certificateholders in person or by agent duly
appointed in writing, and such action shall become effective when such
instrument or instruments are delivered to the Trustee. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the “act” of the Certificateholders signing such
instrument or instruments. Proof of execution of any such instrument or of
a
writing appointing any such agent shall be sufficient for any purpose of this
Agreement and conclusive in favor of the Trustee, if made in the manner provided
in this Section 12.11.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by the certificate
of
a notary public or other officer authorized by law to take acknowledgments
of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Whenever such execution is by a
signer acting in a capacity other than his or her individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) Any
request, demand, authorization, direction, notice, consent, waiver or other
action by any Certificateholder shall bind every future Holder of such
Certificate and the Holder of every Certificate issued upon the registration
of
transfer thereof or in exchange therefor or in lieu thereof, in respect of
anything done, omitted or suffered to be done by the Trustee Servicer in
reliance thereon, whether or not notation of such action is made upon such
Certificate.
129
SECTION
12.12. Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto.
SECTION
12.13. Provision
of Information.
For
so
long as any of the Certificates of any Class are “restricted securities” within
the meaning of Rule 144(a)(3) under the Securities Act, the Depositor agrees
to
provide to any Certificateholders and to any prospective purchaser of
Certificates designated by such holder, upon the request of such holder or
prospective purchaser, any information required to be provided to such holder
or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Securities Act.
The
Trustee shall provide to any person to whom a Prospectus was delivered by
Greenwich Capital Markets, Inc. (as identified by Greenwich Capital Markets,
Inc.), upon the request of such person specifying the document or documents
requested (and certifying that it is a Person entitled hereunder), (i) a
copy (excluding exhibits) of any report on Form 8-K or Form 10-K filed with
the
Securities and Exchange Commission pursuant to Section 3.05 and (ii) a copy
of any other document incorporated by reference in the Prospectus (to the extent
in the Trustee’s possession). Any reasonable out-of-pocket expenses incurred by
the Trustee in providing copies of such documents shall be reimbursed by the
Depositor.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
130
IN
WITNESS WHEREOF, the Depositor, the Seller and the Trustee have caused their
names to be signed hereto by their respective officers thereunto duly
authorized, all as of the day and year first above written.
On
the
1st day of February 2006, before me, a notary public in and for said State,
personally appeared Shakti Radhakishun known to me to be a SVP of Greenwich
Capital Acceptance, Inc., a Delaware corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
On
the
1st day of February 2006, before me, a notary public in and for said State,
personally appeared Kimberly J. Donnelly known to me to be a SVP of Greenwich
Capital Financial Products, Inc., a Delaware corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
On
the
1st day of February 2006, before me, a notary public in and for said State,
personally appeared James H. Byrnes known to me to be an V.P. of U.S. Bank
National Association, a national banking association that executed the within
instrument, and also known to me to be the person who executed it on behalf
of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary
Public
EXHIBIT
A-1
FORM
OF CLASS A CERTIFICATE
CLASS
[__]-A-[__] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
IF
THE
RATING OF THIS CERTIFICATE IS BELOW “AA-” OR ITS EQUIVALENT WHEN IT IS ACQUIRED,
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF
THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE
WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND
III OF PTCE 95-60.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Class
[__]-A-[____]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the Agreement. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does
not evidence an obligation of, or an interest in, and is not guaranteed by
the
Depositor, the Seller, or the Trustee referred to below or any of their
respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
(a)
the Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”) and (b) amounts on deposit in the Prefunding Account. The Trust
Fund was created pursuant to a Pooling Agreement dated as of January 1, 2006
(the “Agreement”) among the Depositor, Greenwich Capital Financial Products,
Inc., as seller (the “Seller”) and U.S. Bank National Association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Certificate Registrar.
A-1-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Date:
January
___, 2006
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity,
but
solely as Trustee
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
U.S.
Bank
National Association,
as
Certificate Registrar
A-1-4
EXHIBIT
A-2
FORM
OF CLASS X CERTIFICATE
CLASS
X-[____] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
IF
THE
RATING OF THIS CERTIFICATE IS BELOW “AA-” OR ITS EQUIVALENT WHEN IT IS ACQUIRED,
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF
THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE
WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND
III OF PTCE 95-60.
PRINCIPAL
WILL NOT BE DISTRIBUTABLE IN RESPECT OF THIS CERTIFICATE. INTEREST IS CALCULATED
ON THIS CERTIFICATE BASED ON A NOTIONAL AMOUNT DETERMINED AS DESCRIBED IN THE
POOLING AGREEMENT. THE CERTIFICATE NOTIONAL AMOUNT OF THIS CERTIFICATE AT ANY
TIME MAY BE LESS THAN THE INITIAL CERTIFICATE NOTIONAL AMOUNT OF THIS
CERTIFICATE AS SET FORTH HEREON.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Class
X-[____]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller, or the Trustee referred to below or
any
of their respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
(a)
the Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”) and (b) amounts on deposit in the Prefunding Account. The Trust
Fund was created pursuant to a Pooling Agreement dated as of January 1, 2006
(the “Agreement”) among the Depositor, Greenwich Capital Financial Products,
Inc., as seller (the “Seller”) and U.S. Bank National Association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Certificate Registrar.
A-2-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Date: January
___, 2006
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity,
but
solely as Trustee
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
U.S.
Bank
National Association,
as
Certificate Registrar
A-2-4
EXHIBIT
A-3
FORM
OF CLASS PO CERTIFICATE
CLASS
PO-[____] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF
THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE
WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND
III OF PTCE 95-60.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Class
PO-[___]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the Agreement. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does
not evidence an obligation of, or an interest in, and is not guaranteed by
the
Depositor, the Seller or the Trustee referred to below or any of their
respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
(a)
the Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”) and (b) amounts on deposit in the Prefunding Account. The Trust
Fund was created pursuant to a Pooling Agreement dated as of January 1, 2006
(the “Agreement”) among the Depositor, Greenwich Capital Financial Products,
Inc., as seller (the “Seller”) and U.S. Bank National Association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Certificate Registrar.
A-3-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Date: January
___, 2006
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity,
but
solely as Trustee
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
U.S.
Bank
National Association,
as
Certificate Registrar
A-3-4
EXHIBIT
B
FORM
OF RESIDUAL CERTIFICATE
CLASS
[A-R] [A-R-II] CERTIFICATE
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “RESIDUAL INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
[For
Class A-R-II Only:]
THIS
CERTIFICATE IS NOT ENTITLED TO DISTRIBUTIONS OF PRINCIPAL AND WILL NOT ACCRUE
INTEREST. THE HOLDER OF THIS CERTIFICATE WILL BE ENTITLED TO CERTAIN
DISTRIBUTIONS AS PROVIDED IN THE AGREEMENT.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE PROPOSED
TRANSFEREE DELIVERS TO THE TRUSTEE AND THE CERTIFICATE REGISTRAR A TRANSFER
AFFIDAVIT IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED TO
HEREIN.
NEITHER
THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE TRANSFERRED UNLESS THE
TRANSFEREE DELIVERS TO THE CERTIFICATE REGISTRAR EITHER (A) A REPRESENTATION
LETTER TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT PLAN
SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF THE
CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN OR
ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER, OR (B) A REPRESENTATION THAT THE PURCHASER IS AN INSURANCE COMPANY
PURCHASING THIS CERTIFICATE WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY
GENERAL ACCOUNT” AS DEFINED IN SECTION V(e) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60 (“PTCE 95-60”) AND THAT THE PURCHASE AND HOLDING OF THIS
CERTIFICATE ARE COVERED UNDER SECTIONS I AND III OF PTCE-95-60, OR (C) AN
OPINION OF COUNSEL IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT REFERRED
TO HEREIN. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ANY PURPORTED
TRANSFER OF THIS CERTIFICATE TO OR ON BEHALF OF AN EMPLOYEE BENEFIT PLAN SUBJECT
TO ERISA OR TO THE CODE WITHOUT AN OPINION OF COUNSEL SATISFACTORY TO THE
CERTIFICATE REGISTRAR AS DESCRIBED ABOVE SHALL BE VOID AND OF NO
EFFECT.
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Class
[A-R] [A-R-II]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE, INC., as Depositor.
This
Certificate does not evidence an obligation of, or an interest in, and is not
guaranteed by the Depositor, the Seller or the Trustee referred to below or
any
of their respective affiliates. Neither this Certificate nor the Mortgage Loans
are guaranteed or insured by any governmental agency or
instrumentality.
This
certifies that GREENWICH CAPITAL MARKETS, INC. is the registered owner of the
Percentage Interest evidenced by this Certificate specified above in the
interest represented by all Certificates of the Class to which this Certificate
belongs in a Trust Fund consisting primarily of (a) the Mortgage Loans deposited
by Greenwich Capital Acceptance, Inc. (the “Depositor”) and (b) amounts on
deposit in the Prefunding Account. The Trust Fund was created pursuant to a
Pooling Agreement dated as of January 1, 2006 (the “Agreement”) among the
Depositor, Greenwich Capital Financial Products, Inc., as seller (the “Seller”)
and U.S. Bank National Association, as trustee (the “Trustee”). To the extent
not defined herein, the capitalized terms used herein have the meanings assigned
in the Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement the Holder of
this Certificate by virtue of the acceptance hereof assents and by which such
Holder is bound.
Any
distribution of the proceeds of any remaining assets of the Trust Fund will
be
made only upon presentment and surrender of this Certificate at the Corporate
Trust Office of the Certificate Registrar or the office or agency maintained
by
the Certificate Registrar.
No
transfer of this Certificate shall be made unless the Certificate Registrar
shall have received either (i) a representation letter from the transferee
of
such Certificate, acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor and in substantially the form attached
to the Agreement, to the effect that such transferee is not an employee benefit
or other plan or arrangement subject to Section 406 of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the
Internal Revenue Code of 1986, as amended (the “Code”), nor a person acting on
behalf or investing plan assets of any such plan or arrangement, which
representation letter shall not be an expense of the Certificate Registrar
or
the Trustee, or (ii) a representation that the purchaser is an insurance company
which is purchasing such Certificate with funds contained in an “insurance
company general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and
holding of such Certificate are covered under Sections I and III of PTCE 95-60,
or (iii) an Opinion of Counsel in accordance with the provisions of the
Agreement. Notwithstanding anything else to the contrary herein, any purported
transfer of this Certificate to or on behalf of an employee benefit plan subject
to ERISA or to the Code without the opinion of counsel satisfactory to the
Certificate Registrar as described above shall be void and of no
effect.
B-3
Each
Holder of this Certificate will be deemed to have agreed to be bound by the
restrictions of the Agreement, including but not limited to the restrictions
that (i) each person holding or acquiring any Ownership Interest in this
Certificate must be a Permitted Transferee, (ii) no Ownership Interest in this
Certificate may be transferred without delivery to the Trustee and the
Certificate Registrar of (a) a transfer affidavit of the proposed transferee
and
(b) a transfer certificate of the transferor, each of such documents to be
in
the form described in the Agreement, (iii) each person holding or acquiring
any
Ownership Interest in this Certificate must agree to require a transfer
affidavit and to deliver a transfer certificate to the Trustee and the
Certificate Registrar as required pursuant to the Agreement, (iv) each person
holding or acquiring an Ownership Interest in this Certificate must agree not
to
transfer an Ownership Interest in this Certificate if it has actual knowledge
that the proposed transferee is not a Permitted Transferee and (v) any attempted
or purported transfer of any Ownership Interest in this Certificate in violation
of such restrictions will be absolutely null and void and will vest no rights
in
the purported transferee. The Trustee will provide the Internal Revenue Service
and any pertinent persons with the information needed to compute the tax imposed
under the applicable tax laws on transfers of residual interests to disqualified
organizations, if any person other than a Permitted Transferee acquires an
Ownership Interest in this Certificate in violation of the restrictions
mentioned above.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized officer of the
Certificate Registrar.
B-4
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Date: January
___, 2006
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity,
but
solely as Trustee
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
U.S.
Bank
National Association,
as
Certificate Registrar
B-5
EXHIBIT
C
FORM
OF SUBORDINATE CERTIFICATE
CLASS
B-[
] CERTIFICATE
UNLESS
THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE TRUSTEE OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
SOLELY
FOR U.S. FEDERAL INCOME TAX PURPOSES, THIS CERTIFICATE IS A “REGULAR INTEREST”
IN A “REAL ESTATE MORTGAGE INVESTMENT CONDUIT”, AS THOSE TERMS ARE DEFINED,
RESPECTIVELY, IN SECTIONS 860G AND 860D OF THE INTERNAL REVENUE CODE OF 1986,
AS
AMENDED (THE “CODE”).
THE
HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF IS DEEMED TO HAVE
REPRESENTED AND WARRANTED THAT (A) SUCH TRANSFEREE IS NOT AN EMPLOYEE BENEFIT
PLAN SUBJECT TO SECTION 406 OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF
1974, AS AMENDED (“ERISA”), OR A PLAN OR ARRANGEMENT SUBJECT TO SECTION 4975 OF
THE CODE (COLLECTIVELY, A “PLAN”) NOR A PERSON ACTING ON BEHALF OF ANY SUCH PLAN
OR ARRANGEMENT NOR A PERSON USING THE ASSETS OF ANY SUCH PLAN TO EFFECT THE
TRANSFER OR (B) IF THIS CERTIFICATE HAS BEEN THE OBJECT OF AN ERISA-QUALIFYING
UNDERWRITING, THE PURCHASER IS AN INSURANCE COMPANY PURCHASING THIS CERTIFICATE
WITH FUNDS CONTAINED IN AN “INSURANCE COMPANY GENERAL ACCOUNT” AS DEFINED IN
SECTION V(e) OF PROHIBITED TRANSACTION CLASS EXEMPTION (“PTCE”) 95-60 AND THAT
THE PURCHASE AND HOLDING OF THIS CERTIFICATE ARE COVERED UNDER SECTIONS I AND
III OF PTCE 95-60.
THIS
CERTIFICATE IS SUBORDINATE IN RIGHT AND PAYMENT AS DESCRIBED IN THE AGREEMENT
REFERRED TO HEREIN.
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Class
B-[
]
evidencing
the Percentage Interest in the distributions allocable to the Certificates
of
the above-referenced Class with respect to the Trust Fund consisting primarily
of adjustable rate, first lien mortgage loans (the “Mortgage Loans”) purchased
from others by
GREENWICH
CAPITAL ACCEPTANCE INC., as Depositor.
Principal
in respect of this Certificate is distributable monthly as set forth herein
and
in the Agreement. Accordingly, the Certificate Principal Balance of this
Certificate at any time may be less than the Initial Certificate Principal
Balance set forth on the face hereof, as described herein. This Certificate
does
not evidence an obligation of, or an interest in, and is not guaranteed by
the
Depositor, the Seller or the Trustee referred to below or any of their
respective affiliates.
This
certifies that CEDE & CO. is the registered owner of the Percentage Interest
evidenced by this Certificate (obtained by dividing the Denomination of this
Certificate by the Original Class Certificate Principal Balance) in certain
monthly distributions with respect to a Trust Fund consisting primarily of
(a)
the Mortgage Loans deposited by Greenwich Capital Acceptance, Inc. (the
“Depositor”) and (b) amounts on deposit in the Prefunding Account. The Trust
Fund was created pursuant to a Pooling Agreement dated as of January 1, 2006
(the “Agreement”) among the Depositor, Greenwich Capital Financial Products,
Inc., as seller (the “Seller”) and U.S. Bank National Association, as trustee
(the “Trustee”). To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Agreement. This Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement,
to which Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is bound.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
This
Certificate shall not be entitled to any benefit under the Agreement or be
valid
for any purpose unless manually countersigned by an authorized signatory of
the
Certificate Registrar.
C-3
IN
WITNESS WHEREOF, the Trustee has caused this Certificate to be duly
executed.
Date: January
___, 2006
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity,
but
solely as Trustee
By
This
is
one of the Certificates
referenced
in the within-mentioned Agreement
By
________________________________________
Authorized
Signatory of
U.S.
Bank
National Association,
as
Certificate Registrar
C-4
EXHIBIT
D
[RESERVED]
D-1
EXHIBIT
E
FORM
OF REVERSE OF THE CERTIFICATES
HARBORVIEW
MORTGAGE LOAN TRUST 2006-1
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Reverse
Certificate
This
Certificate is one of a duly authorized issue of Certificates designated as
HarborView Mortgage Loan Trust 2006-1, Mortgage Loan Pass-Through Certificates,
Series 2006-1 (herein collectively called the “Certificates”), and representing
a beneficial ownership interest in the Trust Fund created by the
Agreement.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Distribution Account for payment
hereunder and that the Trustee is not liable to the Certificateholders for
any
amount payable under this Certificate or the Agreement or, except as expressly
provided in the Agreement, subject to any liability under the
Agreement.
This
Certificate does not purport to summarize the Agreement and reference is made
to
the Agreement for the interests, rights and limitations of rights, benefits,
obligations and duties evidenced thereby, and the rights, duties and immunities
of the Trustee.
Pursuant
to the terms of the Agreement, distributions will be made on the 19th
day of
each month, or if the 19th
day is
not a Business Day, then on the next succeeding Business Day (the “Distribution
Date”), commencing on the Distribution Date in February 2006, to the Person in
whose name this Certificate is registered at the close of business on the
applicable Record Date in an amount equal to the product of the Percentage
Interest evidenced by this Certificate and the amount required to be distributed
to Holders of Certificates of the Class to which this Certificate belongs on
such Distribution Date pursuant to the Agreement.
Distributions
on this Certificate shall be made, (i) in the case of a Physical Certificate,
by
check or money order mailed to the address of the person entitled thereto as
it
appears on the Certificate Register or, upon the request of a Certificateholder,
by wire transfer as set forth in the Agreement and (ii) in the case of a
Book-Entry Certificate, to the Depository, which shall credit the amounts of
such distributions to the accounts of its Depository Participants in accordance
with its normal procedures. The final distribution on each Certificate shall
be
made in like manner, but only upon presentment and surrender of such Certificate
at the office or agency of the Certificate Registrar specified in the notice
to
Certificateholders of such final distribution.
The
Agreement permits, with certain exceptions therein provided, the amendment
thereof and the modification of the rights of the Certificateholders under
the
Agreement at any time, by the Depositor, the Seller, the Trustee and Holders
of
the requisite percentage of the Percentage Interests of each Class of
Certificates affected by such amendment, as specified in the Agreement. Any
such
consent by the Holder of this Certificate shall be conclusive and binding on
such Holder and upon all future Holders of this Certificate and of any
Certificate issued upon the transfer hereof or in exchange therefor or in lieu
hereof whether or not notation of such consent is made upon this Certificate.
The Agreement also permits the amendment thereof, in certain limited
circumstances, without the consent of the Holders of any of the
Certificates.
E-1
As
provided in the Agreement and subject to certain limitations therein set forth,
the transfer of this Certificate is registrable in the Certificate Register
of
the Certificate Registrar upon surrender of this Certificate for registration
of
transfer at the office or agency maintained by the Certificate Registrar
accompanied by a written instrument of transfer in form satisfactory to the
Certificate Registrar duly executed by the Holder hereof or such Holder’s
attorney duly authorized in writing, and thereupon one or more new Certificates
of the same Class in authorized denominations and evidencing the same aggregate
Percentage Interest in the Trust Fund will be issued to the designated
transferee or transferees.
[Each
of
the Class A-R and Class A-R-II Certificates is issuable as a single certificate
in physical form only in a Percentage Interest of 100%.] [Applicable
to Class A-R and Class A-R-II Certificates only.]
[The
Certificates are issuable only as registered Certificates without coupons in
denominations specified in the Agreement. As provided in the Agreement and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of the same Class in authorized denominations and
evidencing the same aggregate Percentage Interest, as requested by the Holder
surrendering the same.] [Applicable
to Class A-R and Class A-R-II Certificates only.]
[Subject
to the terms of the Agreement, each Class of Book-Entry Certificates will be
registered as being held by the Depository or its nominee and beneficial
interests will be held by Certificate Owners through the book-entry facilities
of the Depository or its nominee in minimum denominations of $25,000 and
integral dollar multiples of $1 in excess thereof, provided, that, such
certificates must be purchased in minimum total investments of at least
$100,000, in the case of the Class 1-A1A, Class 1-A1B, Class 2-A1A, Class 2-A1B,
Class 2-A1C, Class X-1, Class X-2A1B, Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, Class B-6, Class B-7, Class B-8 and Class B-9 Certificates;
0.01% minimum percentage interests in the case of the Class PO-1 and Class
PO-2A1B Certificates, provided, that, such certificates must be purchased in
minimum total investments of at least $100,000; and $100,000 and integral dollar
multiples of $1 in excess thereof, in the case of the Class B-10, Class B-11,
and Class B-12 Certificates, except that one Certificate of each such Class
of
Certificates may be in a different denomination.] [Not
applicable to Class A-R and Class A-R-II Certificates.]
No
service charge will be made for any such registration of transfer or exchange,
but the Certificate Registrar may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection
therewith.
The
Depositor, the Seller, the Trustee, the Certificate Registrar and any agent
of
the Depositor, the Seller, the Trustee or the Certificate Registrar may treat
the Person in whose name this Certificate is registered as the owner hereof
for
all purposes, and none of the Depositor, the Seller, the Trustee and the
Certificate Registrar or any agent of any of them shall be affected by any
notice to the contrary.
E-2
On
any
Distribution Date on which the aggregate of the Stated Principal Balances of
the
Mortgage Loans immediately after such date is equal to or less than 10% of
the
Cut-Off Date Aggregate Principal Balance, the Call Option Holder may, at its
option, terminate the Agreement by purchasing, on such Distribution Date, all
of
the outstanding Mortgage Loans and REO Properties at the Termination Price
as
provided in the Pooling Agreement. In the event that the Call Option Holder
does
not exercise its right of optional termination, the obligations and
responsibilities created by the Agreement will terminate upon the earliest
of
(i) the Distribution Date on which the Class Certificate Principal Balance
of
each Class of Certificates has been reduced to zero, (ii) the final payment
or
other liquidation of the last Mortgage Loan and (iii) the Latest Possible
Maturity Date.
Capitalized
terms used herein that are defined in the Agreement shall have the meanings
ascribed to them in the Agreement, and nothing herein shall be deemed
inconsistent with that meaning.
E-3
ASSIGNMENT
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(Please
print or typewrite name and address including postal zip code of
assignee)
the
Percentage Interest evidenced by the within Certificate and hereby authorizes
the transfer of registration of such Percentage Interest to assignee on the
Certificate Register of the Trust.
I
(We)
further direct the Trustee to issue a new Certificate of a like denomination
and
Class, to the above named assignee and deliver such Certificate to the following
address:
_____________________________________________________________________________.
Dated:
_____________
____________
Signature
by or on behalf of assignor
E-4
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for purposes of distribution:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
to_________________________________________ for
the
account of___________________________________________, account
number ________________________, or, if mailed by check, to _____________________________________________
Applicable statements should be mailed to
______________________________________.
This
information is provided by _____________________________________________,
the
assignee named above, or _____________________________________________________,
as
its
agent.
E-5
EXHIBIT
F
REQUEST
FOR RELEASE
Date
[Addressed
to Trustee
or,
if
applicable, custodian]
In
connection with the administration of the mortgages held by you as [Trustee]
[Custodian, on behalf of the Trustee] under a certain Pooling Agreement dated
as
of January 1, 2006 among Greenwich Capital Acceptance, Inc., as Depositor,
Greenwich Capital Financial Products, Inc., as Seller, U.S. Bank National
Association, as Trustee (the “Pooling Agreement”), the undersigned [Servicer]
hereby requests a release of the Mortgage File held by you as [Trustee]
[Custodian, on behalf of the Trustee] with respect to the following described
Mortgage Loan for the reason indicated below.
Mortgagor’s
Name:
Address:
Loan
No.:
Reason
for requesting file:
1. Mortgage
Loan paid in full. (The [Servicer] hereby certifies that all amounts received
in
connection with the loan have been or will be credited to the Distribution
Account pursuant to the Pooling Agreement.)
2. The
Mortgage Loan is being foreclosed.
3. Mortgage
Loan substituted. (The [Servicer] hereby certifies that a Qualified Substitute
Mortgage Loan has been assigned and delivered to you along with the related
Mortgage File pursuant to the Pooling Agreement.)
4. Mortgage
Loan repurchased. (The [Servicer] hereby certifies that the Purchase Price
has
been credited to the Distribution Account pursuant to the Pooling
Agreement.)
5. Other.
(Describe)
The
undersigned acknowledges that the above Mortgage File will be held by the
undersigned in accordance with the provisions of the Pooling Agreement and
will
be returned to you within ten (10) days of our receipt of the Mortgage File,
except if the Mortgage Loan has been paid in full, or repurchased or substituted
for a Qualified Substitute Mortgage Loan (in which case the Mortgage File will
be retained by us without obligation to return to you).
F-1
Capitalized
terms used herein shall have the meanings ascribed to them in the Pooling
Agreement.
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Ladies
and Gentlemen:
Pursuant
to Section 2.01 of the Pooling Agreement, dated as of January 1, 2006, among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller and U.S. Bank National Association, as Trustee, we
hereby acknowledge receipt of an original Mortgage Note with respect to each
Mortgage Loan listed on Exhibit 1, with any exceptions thereto listed on Exhibit
2.
Mortgage
Loan Pass-Through Certificates, Series
2006-1
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling Agreement dated as of January 1,2006 (the “Pooling Agreement”), among Greenwich Capital Acceptance, Inc., as
Depositor, Greenwich Capital Financial Products, Inc., as Seller and U.S. Bank
National Association, as Trustee, the undersigned, as Trustee, hereby certifies
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than
any Mortgage Loan paid in full or listed on the attached schedule):
(i)
all
documents required to be delivered to the Trustee (or to the Custodian,
on
behalf of the Trustee) pursuant to Section 2.01 of the Pooling
Agreement are in its possession;
(ii)
such
documents have been reviewed by the Trustee and have not been mutilated,
damaged or torn and relate to such Mortgage Loan;
and
(iii)
based
on the Trustee’s examination and only as to the foregoing, the information
set forth in the Mortgage Loan Schedule that corresponds to items
(i),
(ii) and (iii) of the Mortgage Loan Schedule accurately reflects
information set forth in the Mortgage
File.
Based
on
its review and examination and only as to the foregoing documents, such
documents appear regular on their face and relate to such Mortgage
Loan.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling Agreement.
The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained
in
each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or suitability
of any such Mortgage Loan.
G-2-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
Mortgage
Loan Pass-Through Certificates, Series
2006-1
Ladies
and Gentlemen:
In
accordance with Section 2.02 of the Pooling Agreement dated as of January 1,2006 (the “Pooling Agreement”), among Greenwich Capital Acceptance, Inc., as
Depositor, Greenwich Capital Financial Products, Inc., as Seller and U.S. Bank
National Association, as Trustee, the undersigned, as Trustee, hereby certifies
that as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than
any Mortgage Loan paid in full or listed in the attached schedule) it has
received all documents required to be delivered to the Trustee pursuant to
Section 2.01 of the Pooling Agreement.
Based
on
its review and examination and only as to the foregoing documents, (a) such
documents appear regular on their face and related to such Mortgage Loan, and
(b) the information set forth in items (i), (ii) and (iii) of the definition
of
“Mortgage Loan Schedule” in the Pooling Agreement accurately reflects the
information set forth in each Mortgage File.
The
Trustee has made no independent examination of any documents contained in each
Mortgage File beyond the review specifically required in the Pooling Agreement.
The Trustee makes no representations as to: (i) the validity, legality,
sufficiency, enforceability or genuineness of any of the documents contained
in
each Mortgage File of any of the Mortgage Loans identified on the Mortgage
Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or suitability
of any such Mortgage Loan.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
G-3-1
U.S.
BANK NATIONAL ASSOCIATION,
as Trustee
By:
Name:
Title
G-3-2
EXHIBIT
H
FORM
OF LOST NOTE AFFIDAVIT
Personally
appeared before me the undersigned authority to administer oaths,
______________________ who first being duly sworn deposes and says: Deponent
is
______________________ of Greenwich Capital Financial Products, Inc. (the
“Seller”) and who has personal knowledge of the facts set out in this
affidavit.
On
_______________, 200__, _________________________ did execute and deliver a
promissory note in the principal amount of $__________.
That
said
note has been misplaced or lost through causes unknown and is currently lost
and
unavailable after diligent search has been made. The Seller’s records show that
an amount of principal and interest on said note is still presently outstanding,
due, and unpaid, and such Seller is still owner and holder in due course of
said
lost note.
The
Seller executes this Affidavit for the purpose of inducing U.S. Bank National
Association, as trustee on behalf of HarborView Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series 2006-1, to accept the transfer
of the above-described mortgage loan from the Seller.
The
Seller agrees to indemnify U.S. Bank National Association and Greenwich Capital
Acceptance, Inc. and hold each of them harmless for any losses incurred by
such
parties resulting from the fact that the above described Note has been lost
or
misplaced.
By:
__________________________________
__________________________________
STATE
OF
)
)
ss:
COUNTY
OF
)
On
this
____ day of ___________ 20__, before me, a Notary Public, in and for said County
and State, appeared ________________________, who acknowledged the extension
of
the foregoing and who, having been duly sworn, states that any representations
therein contained are true.
Witness
my hand and Notarial Seal this ____ day of _______ 20__.
_______________________________
_______________________________
My
commission expires _______________.
H-1
EXHIBIT
I-1
FORM
OF ERISA REPRESENTATION FOR RESIDUAL CERTIFICATES
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which she makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if the Certificate has been the subject of a best efforts or
firm
commitment underwriting or private placement that meets the requirements of
Prohibited Transaction Exemption 2002-41, and is an insurance company which
is
purchasing such Certificates with funds contained in an “insurance company
general account” (as such term is defined in Section V(e) of Prohibited
Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the purchase and
holding of such Certificates are covered under Section I and III of PTCE 95-60;
or (z) shall deliver to the Certificate Registrar an opinion of counsel (a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee will not result
in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Trustee, the Certificate Registrar, the
Servicer or the Depositor to any obligation in addition to those undertaken
by
such entities in the Pooling Agreement, which opinion of counsel shall not
be an
expense of the Trustee, the Certificate Registrar the Depositor or the
Trust.
I-1-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling Agreement
dated as of January 1, 2006 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller and U.S. Bank National Association, as Trustee, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and Trustee have
received a certificate from such transferee in the form hereof.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
1. The
undersigned is the ______________________ of _________________ (the
“Transferee”), a [corporation duly organized] and existing under the laws of
__________, on behalf of which s/he makes this affidavit.
2. The
Transferee either (x) is not an employee benefit plan subject to Section 406
of
the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or a
plan or arrangement subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the “Code”) (collectively, a “Plan”) nor a person acting on
behalf of any such Plan nor using the assets of any such Plan to effect the
transfer; (y) if a Certificate, other than the Class Y Certificate, has been
the
subject of a best efforts or firm commitment underwriting or private placement
that meets the requirements of Prohibited Transaction Exemption 2002-41, is
an
insurance company which is purchasing such Certificates with funds contained
in
an “insurance company general account” (as such term is defined in Section V(e)
of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”) and that the
purchase and holding of such Certificates are covered under Section I and III
of
PTCE 95-60; or (z) in the case of a Certificate, other than the Class Y
Certificate, shall deliver to the Certificate Registrar an opinion of counsel
(a
“Benefit Plan Opinion”) satisfactory to the Certificate Registrar, and upon
which the Certificate Registrar shall be entitled to rely, to the effect that
the purchase or holding of such Certificate by the Transferee will not result
in
a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975
of the Code and will not subject the Trustee, the Certificate Registrar, the
Servicer or the Depositor to any obligation in addition to those undertaken
by
such entities in the Pooling Agreement, which opinion of counsel shall not
be an
expense of the Trustee, the Certificate Registrar the Depositor or the
Trust.
I-2-1
3. The
Transferee hereby acknowledges that under the terms of the Pooling Agreement
dated as of January 1, 2006 (the “Agreement”) among Greenwich Capital
Acceptance, Inc., as Depositor, Greenwich Capital Financial Products, Inc.,
as
Seller and U.S. Bank National Association, as Trustee, no transfer of any
ERISA-Restricted Certificate in the form of a Definitive Certificate shall
be
permitted to be made to any person unless the Depositor and Trustee have
received a certificate from such transferee in the form hereof.
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
IN
WITNESS WHEREOF, the Transferee has executed this certificate.
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are acquiring the Certificates for investment
for our own account and not with a view to any distribution of such Certificates
(but without prejudice to our right at all times to sell or otherwise dispose
of
the Certificates in accordance with clause (f) below), (e) we have not offered
or sold any Certificates to, or solicited offers to buy any Certificates from,
any person, or otherwise approached or negotiated with any person with respect
thereto, or taken any other action which would result in a violation of Section
5 of the Act, and (f) we will not sell, transfer or otherwise dispose of any
Certificates unless (1) such sale, transfer or other disposition is made
pursuant to an effective registration statement under the Act or is exempt
from
such registration requirements, and if requested, we will at our expense provide
an opinion of counsel satisfactory to the addressees of this Certificate that
such sale, transfer or other disposition may be made pursuant to an exemption
from the Act, (2) the purchaser or transferee of such Certificate has executed
and delivered to you a certificate to substantially the same effect as this
certificate, and (3) the purchaser or transferee has otherwise complied with
any
conditions for transfer set forth in the Pooling Agreement.
J-1-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
Mortgage
Loan Pass-Through Certificates, Series 2006-1
Ladies
and Gentlemen:
In
connection with our acquisition of the above Certificates we certify that (a)
we
understand that the Certificates are not being registered under the Securities
Act of 1933, as amended (the “Act”), or any state securities laws and are being
transferred to us in a transaction that is exempt from the registration
requirements of the Act and any such laws, (b) we have had the opportunity
to
ask questions of and receive answers from the Depositor concerning the purchase
of the Certificates and all matters relating thereto or any additional
information deemed necessary to our decision to purchase the Certificates,
(c)
we have not, nor has anyone acting on our behalf offered, transferred, pledged,
sold or otherwise disposed of the Certificates, any interest in the Certificates
or any other similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates, any interest in
the
Certificates or any other similar security from, or otherwise approached or
negotiated with respect to the Certificates, any interest in the Certificates
or
any other similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Certificates
under
the Securities Act or that would render the disposition of the Certificates
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will act, nor has authorized or will authorize any person to act,
in such manner with respect to the Certificates, and (d) we are a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act and have completed either of the forms of certification to that effect
attached hereto as Annex 1 or Annex 2. We are aware that the sale to us is
being
made in reliance on Rule 144A. We are acquiring the Certificates for our own
account or for resale pursuant to Rule 144A and further, understand that such
Certificates may be resold, pledged or transferred only (i) to a person
reasonably believed to be a qualified institutional buyer that purchases for
its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
J-2-1
Capitalized
words and phrases used herein shall have the respective meanings assigned to
them in the Pooling Agreement.
Very
truly yours,
[NAME
OF TRANSFEREE]
By:
Authorized
Officer
J-2-2
ANNEX
1 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees Other Than Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
i. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
ii. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933, as
amended (“Rule 144A”) because (i) the Buyer owned and/or invested on a
discretionary basis $1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A and (ii) the Buyer satisfies the criteria in the
category marked below.
___Corporation,
etc.
The
Buyer is a corporation (other than a bank, savings and loan association or
similar institution), Massachusetts or similar business trust, partnership,
or
charitable organization described in Section 501(c)(3) of the Internal Revenue
Code of 1986, as amended.
___Bank.
The
Buyer (a) is a national bank or banking institution organized under the laws
of
any State, territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
___Savings
and Loan.
The
Buyer (a) is a savings and loan association, building and loan association,
cooperative bank, homestead association or similar institution, which is
supervised and examined by a State or Federal authority having supervision
over
any such institutions or is a foreign savings and loan association or equivalent
institution and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial statements, a
copy
of which is attached hereto.
(1)
Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must
own
and/or invest on a discretionary basis at least $10,000,000 in
securities.
J-2-3
___Broker-dealer.
The
Buyer is a dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934.
___Insurance
Company.
The
Buyer is an insurance company whose primary and predominant business activity
is
the writing of insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance commissioner
or a
similar official or agency of a State, territory or the District of
Columbia.
___State
or Local Plan.
The
Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its political
subdivisions, for the benefit of its employees.
___ERISA
Plan.
The
Buyer is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.
___Investment
Advisor.
The
Buyer is an investment advisor registered under the Investment Advisors Act
of
1940.
___Small
Business Investment Company.
Buyer
is a small business investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business Investment
Act
of 1958.
___Business
Development Company.
Buyer
is a business development company as defined in Section 202(a)(22) of the
Investment Advisors Act of 1940.
iii. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) securities issued or guaranteed by the U.S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned
but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph, except (i) where the Buyer reports its securities
holdings in its financial statements on the basis of their market value, and
(ii) no current information with respect to the cost of those securities has
been published. If clause (ii) in the preceding sentence applies, the securities
may be valued at market. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer’s direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934, as
amended.
J-2-4
v. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Certificates are relying and will
continue to rely on the statements made herein because one or more sales to
the
Buyer may be in reliance on Rule 144A.
vi. Until
the
date of purchase of the Rule 144A Securities, the Buyer will notify each of
the
parties to which this certification is made of any changes in the information
and conclusions herein. Until such notice is given, the Buyer’s purchase of the
Certificates will constitute a reaffirmation of this certification as of the
date of such purchase. In addition, if the Buyer is a bank or savings and loan
is provided above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
Print
Name of Buyer
By:
Name:
Title:
Date:
J-2-5
ANNEX
2 TO EXHIBIT J
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Transferees That are Registered Investment Companies]
The
undersigned (the “Buyer”) hereby certifies as follows to the parties listed in
the Rule 144A Transferee Certificate to which this certification relates with
respect to the Certificates described therein:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933, as amended (“Rule 144A”) because Buyer is part of a Family of
Investment Companies (as defined below), is such an officer of the
Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, as amended and
(ii)
as marked below, the Buyer alone, or the Buyer’s Family of Investment Companies,
owned at least $100,000,000 in securities (other than the excluded securities
referred to below) as of the end of the Buyer’s most recent fiscal year. For
purposes of determining the amount of securities owned by the Buyer or the
Buyer’s Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer’s Family of Investment Companies reports
its securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market.
___ The
Buyer
owned $
in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
___ The
Buyer
is part of a Family of Investment Companies which owned in the aggregate
$in
securities (other than the excluded securities referred to below) as of the
end
of the Buyer’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer’s Family of Investment Companies, (ii) securities
issued or guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v)
repurchase agreements, (vi) securities owned but subject to a repurchase
agreement and (vii) currency, interest rate and commodity swaps.
J-2-6
5. The
Buyer
is familiar with Rule 144A and understands that the parties listed in the Rule
144A Transferee Certificate to which this certification relates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer will be in reliance on Rule 144A. In addition, the Buyer will only
purchase for the Buyer’s own account.
6. Until
the
date of purchase of the Certificates, the undersigned will notify the parties
listed in the Rule 144A Transferee Certificate to which this certification
relates of any changes in the information and conclusions herein. Until such
notice is given, the Buyer’s purchase of the Certificates will constitute a
reaffirmation of this certification by the undersigned as of the date of such
purchase.
Pass-Through
Certificates, Series 2006-1, Class [A-R], [A-R-II]
Ladies
and Gentlemen:
In
connection with our proposed transfer of an Ownership Interest in the Class
[A-R], [A-R-II] Certificate, we hereby certify that (a) we have no knowledge
that the proposed Transferee is not a Permitted Transferee acquiring an
Ownership Interest in such Class [A-R], [A-R-II] Certificate for its own account
and not in a capacity as trustee, nominee, or agent for another Person, and
(b)
we have not undertaken the proposed transfer in whole or in part to impede
the
assessment or collection of tax.
Very
truly yours,
[_____________________]
By:
______________________________
K-1
EXHIBIT
L
TRANSFER
AFFIDAVIT FOR RESIDUAL CERTIFICATE
PURSUANT
TO SECTION 6.02(e)
HARBORVIEW
MORTGAGE LOAN TRUST 2006-1
MORTGAGE
LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-1, CLASS [A-R],
[A-R-II]
STATE
OF
)
)
ss:
COUNTY
OF
)
The
undersigned, being first duly sworn, deposes and says as follows:
1.
The
undersigned is an officer of ______________________, the proposed
Transferee of a 100% Ownership Interest in the Class [A-R], [A-R-II]
Certificate (the “Certificate”) issued pursuant to the Pooling Agreement,
(the “Agreement”) dated as of January 1, 2006, relating to the
above-referenced Certificates, among Greenwich Capital Acceptance,
Inc.,
as Depositor, Greenwich Capital Financial Products, Inc., as Seller,
and
U.S. Bank National Association, as Trustee. Capitalized terms used,
but
not defined herein, shall have the meanings ascribed to such terms
in the
Agreement. The Transferee has authorized the undersigned to make
this
affidavit on behalf of the
Transferee.
2.
The
Transferee is, as of the date hereof, and will be, as of the date
of the
Transfer, a Permitted Transferee. The Transferee is acquiring its
Ownership Interest for its own account and not in a capacity as trustee,
nominee or agent for another party.
3.
The
Transferee has been advised of, and understands that (i) a tax will
be
imposed on Transfers of the Certificate to Persons that are not Permitted
Transferees; (ii) such tax will be imposed on the transferor, or,
if such
Transfer is through an agent (which includes a broker, nominee or
middleman) for a Person that is not a Permitted Transferee, on the
agent;
and (iii) the Person otherwise liable for the tax shall be relieved
of
liability for the tax if the subsequent Transferee furnished to such
Person an affidavit that such subsequent Transferee is a Permitted
Transferee and, at the time of Transfer, such Person does not have
actual
knowledge that the affidavit is false. The Transferee has provided
financial statements or other financial information requested by
the
Transferor in connection with the transfer of the Certificate to
permit
the Transferor to assess the financial capability of the Transferee
to pay
such taxes.
4.
The
Transferee has been advised of, and understands that a tax may be
imposed
on a “pass-through entity” holding the Certificate if, at any time during
the taxable year of the pass-through entity, a Disqualified Organization
is the record holder of an interest in such entity. The Transferee
understands that such tax will not be imposed for any period with
respect
to which the record holder furnishes to the pass-through entity an
affidavit that such record holder is not a Disqualified Organization
and
the pass-through entity does not have actual knowledge that such
affidavit
is false. (For this purpose, a “pass-through entity” includes a regulated
investment company, a real estate investment trust or common trust
fund, a
partnership, trust or estate, and certain cooperatives and, except
as may
be provided in Treasury Regulations, persons holding interests in
pass-through entities as a nominee for another
Person.)
L-1
5.
The
Transferee has reviewed the provisions of Section 6.02(e) of the
Agreement
and understands the legal consequences of the acquisition of an Ownership
Interest in the Certificate including, without limitation, the
restrictions on subsequent Transfers and the provisions regarding
voiding
the Transfer and mandatory sales. The Transferee expressly agrees
to be
bound by and to abide by the provisions of Section 6.02(e) of the
Agreement and the restrictions noted on the face of the Certificate.
The
Transferee understands and agrees that any breach of any of the
representations included herein shall render the Transfer to the
Transferee contemplated hereby null and
void.
6.
The
Transferee agrees to require a Transfer Affidavit from any Person
to whom
the Transferee attempts to Transfer its Ownership Interest in the
Certificate, and the Transferee will not Transfer its Ownership Interest
or cause any Ownership Interest to be Transferred to any Person that
the
Transferee knows is not a Permitted Transferee. In connection with
any
such Transfer by the Transferee, the Transferee agrees to deliver
to the
Trustee a certificate substantially in the form set forth as Exhibit
K to
the Agreement (a “Transferor
Certificate”).
7.
The
Transferee does not have the intention to impede the assessment or
collection of any tax legally required to be paid with respect to
the
Certificate.
8.
The
Transferee’s taxpayer identification number is .
9.
The
Transferee is aware that the Certificate may be a “noneconomic residual
interest” within the meaning of the REMIC provisions and that the
transferor of a noneconomic residual interest will remain liable
for any
taxes due with respect to the income on such residual interest, unless
no
significant purpose of the transfer was to impede the assessment
or
collection of tax.
L-2
IN
WITNESS WHEREOF, the Transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
day
of
,
20.
[NAME
OF TRANSFEREE]
By:
Name:
Title:
[Corporate
Seal]
ATTEST:
[Assistant]
Secretary
Personally
appeared before me the above-named ,
known
or proved to me to be the same person who executed the foregoing instrument
and
to be the
of the
Transferee, and acknowledged that he executed the same as his free act and
deed
and the free act and deed of the Transferee.
Subscribed
and sworn before me this day
of
,
20.
NOTARY
PUBLIC
My
Commission expires the
day of ,
20.
L-3
EXHIBIT
M
LIST
OF SERVICING AGREEMENTS
1.
Reconstituted
Servicing Agreement dated as of January1, 2006, by and among Greenwich Capital Financial Products, Inc.,
Countrywide Home Loans, Inc. and Countrywide Home Loans Servicing
LP, as
servicer and acknowledged by U.S. Bank National Association, as
trustee.
Mortgage
Loan Pass-Through Certificates, Series
2006-1
Reference
is hereby made to the Pooling Agreement dated as of January 1, 2006 (the
“Pooling Agreement”) relating to the above referenced certificates, among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller and U.S. Bank National Association, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them
in the Pooling Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Restricted Global Security with
the Depository in the name of [name of transferor]
___________________________________ (the “Transferor”) to effect the transfer of
the Securities in exchange for an equivalent beneficial interest in a Regulation
S Global Security.
In
connection with such request, the Transferor does hereby certify that such
transfer has been effected in accordance with the transfer restrictions set
forth in the Pooling Agreement and the private placement memorandum dated
January 25, 2006, relating to the Securities and in accordance with Rule 904
of
Regulation S, and that:
a. the
offer
of the Securities was not made to a person in the United States;
b. at
the
time the buy order was originated, the transferee was outside the United States
or the Transferor and any person acting on its behalf reasonably believed that
the transferee was outside the United States;
c. no
directed selling efforts have been made in contravention of the requirements
of
Rule 903 or 904 of Regulation S, as applicable;
d. the
transaction is not part of a plan or scheme to evade the registration
requirements of the United States Securities Act of 1933, as amended (the
“Securities Act”); and
N-1-1
e.
the
transferee is not a U.S. Person.
You
and
the Depositor are entitled to rely upon this letter and are irrevocably
authorized to produce this letter or a copy hereof to any interested party
in
any administrative or legal proceedings or official inquiry with respect to
the
matters covered hereby. Terms used in this certificate have the meanings set
forth in Regulation S.
Mortgage Loan Pass-Through Certificates, Series
2006-1
Reference
is hereby made to the Pooling Agreement dated as of January 1, 2006 (the
“Pooling Agreement”) relating to the above referenced certificates, among
Greenwich Capital Acceptance, Inc., as Depositor, Greenwich Capital Financial
Products, Inc., as Seller and U.S. Bank National Association, as Trustee.
Capitalized terms used but not defined herein shall have the meanings given
them
in the Pooling Agreement.
This
letter relates to U.S. $____________________________ aggregate principal amount
of Securities which are held in the form of a Regulations S Global Security
in
the name of [name of transferor] ___________________________________ (the
“Transferor”) to effect the transfer of the Securities in exchange for an
equivalent beneficial interest in a Restricted Global Security.
In
connection with such request, and in respect of such Securities, the Transferor
does hereby certify that such Securities are being transferred in accordance
with (i) the transfer restrictions set forth in the Pooling Agreement and the
private placement memorandum dated January 25, 2006, relating to the Securities
and (ii) Rule 144A under the United States Securities Act of 1933, as amended,
to a transferee that the Transferor reasonably believes is purchasing the
Securities for its own account or an account with respect to which the
transferee exercises sole investment discretion, the transferee or any such
account is a qualified institutional buyer within the meaning of Rule 144A,
in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
jurisdiction.
[Name
of Transferor]
By:
Name:
Title:
Date: ,
N-2-1
EXHIBIT
O
CERTIFICATE
INSURANCE POLICY
O-1
EXHIBIT
P
FORM
OF
TRUSTEE CERTIFICATION
Re:
HarborView
Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series
2006-1
U.S.
Bank
National Association (the “Trustee”) hereby certifies to Greenwich Capital
Acceptance, Inc. (the “Depositor”), each of its officers, directors, agents and
employees, and each Person, if any, who “controls” the Depositor within the
meaning of the Securities Act of 1933, as amended, and its officers, directors
and affiliates, and with the knowledge and intent that they will rely upon
this
certification, that:
1. The
Trustee has reviewed the annual report on Form 10-K for the fiscal year [___],
and all reports on Form 8-K containing distribution reports filed in respect
of
periods included in the year covered by that annual report, of the Depositor
relating to the above-referenced trust;
2. Based
on the Trustee’s knowledge, and assuming the accuracy and completeness of the
information supplied to the Trustee by the Servicer, the distribution
information in the distribution reports contained in all reports on Form 8-K
included in the year covered by the annual report on Form 10-K referred to
in
clause (1) above, prepared by the Trustee, taken as a whole, does not contain
any untrue statement of a material fact or omit to state a material fact
required by the Pooling Agreement to be included therein and necessary to make
the statements made, in light of the circumstances under which such statements
were made, not misleading as of the last day of the period covered by that
annual report; and
3. Based
on
the Trustee’s knowledge, the distribution information required to be provided by
the Trustee under the Pooling Agreement is included in these
reports.
Capitalized
terms used but not defined herein have the meanings ascribed to them in the
Pooling Agreement, dated January 1, 2006 (the “Pooling Agreement”) among the
Depositor, Greenwich Capital Financial Products, Inc., as the seller (the
“Seller”) and the Trustee, as trustee.
U.S.
Bank
National Association,
as
Trustee
By:___________________________
[Name]
[Title]
[Date]
P-1
EXHIBIT
Q
FORM
OF
SUBSEQUENT TRANSFER AGREEMENT
THIS
SUBSEQUENT TRANSFER AGREEMENT, dated as of [],
[]
(this
“Subsequent Transfer Agreement”), among GREENWICH CAPITAL ACCEPTANCE, INC., a
Delaware corporation, as depositor (the “Depositor”), GREENWICH CAPITAL
FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller (the “Seller”), and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(the
“Trustee”);
WHEREAS,
the parties hereto are also among the parties to the Pooling Agreement, dated
as
of January 1, 2006, among the Depositor, the Seller and the Trustee (the
“Pooling Agreement”), in relation to the HarborView Mortgage Loan Trust 2006-1,
Mortgage Loan Pass-Through Certificates, Series 2006-1;
WHEREAS,
the Seller desires to sell the Subsequent Mortgage Loans, including the related
Mortgages, to the Depositor and the Depositor desires to purchase such
Subsequent Mortgage Loans;
WHEREAS,
the Depositor desires to convey such Subsequent Mortgage Loans to the Trustee,
for the benefit of the Certificateholders, and the Trustee desires to accept
such conveyance;
WHEREAS,
Sections 2.01(b) of the Pooling Agreement provides for the parties hereto to
enter into this Subsequent Transfer Agreement in accordance with the terms
and
conditions of the Pooling Agreement;
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration the receipt and adequacy of which are hereby
acknowledged:
1. The
parties hereto agree as follows:
(i)
The
“Subsequent Transfer Date” and “Subsequent Cut-off Date” with respect to
this Subsequent Transfer Agreement shall be [],
[].
(ii)
The
“Aggregate Subsequent Purchase Amount” with respect to this Subsequent
Transfer Agreement shall be $[],
provided,
however,
that such amount shall not exceed the amount on deposit in the Prefunding
Account. From the Aggregate Subsequent Purchase Amount, $[]
shall be used to purchase Subsequent Mortgage Loans for Loan Group
1,
$[]
shall be used to purchase Subsequent Mortgage Loans for Loan Group
2,
$[]
shall be used to purchase Subsequent Mortgage Loans for Loan Group
3 and
$[]
shall be used to purchase Subsequent Mortgage Loans for Loan Group
4.
(iii)
In
case any provision of this Subsequent Transfer Agreement shall be
invalid,
illegal or unenforceable, the validity, legality and enforceability
of the
remaining provisions or obligations shall not in any way be affected
or
impaired thereby.
Q-1
(iv)
In
the event of any conflict between the provisions of this Subsequent
Transfer Agreement and the Pooling Agreement, the provisions of the
Pooling Agreement shall prevail. Capitalized terms used herein and
not
otherwise defined have the meanings in the Pooling
Agreement.
2. The
Seller hereby agrees to the following:
(i)
The
Subsequent Mortgage Loans conveyed on the Subsequent Transfer Date
satisfy
the pool characteristics for the Trust Fund identified in Section
2.01(b)
of the Pooling Agreement.
(ii)
The
Seller hereby sells, transfers, assigns, sets over and otherwise
conveys
to the Depositor, without recourse, all right title and interest
in the
Subsequent Mortgage Loans
identified in Schedule A, including all interest and principal due
on or
with respect to such Subsequent Mortgage Loans after the Subsequent
Cut-off Date and all interest and principal payments on such Subsequent
Mortgage Loans received prior to the Subsequent Cut-off Date in respect
of
installments of interest and principal due thereafter, but not including
principal and interest due on such Subsequent Mortgage Loans prior
to the
Subsequent Cut-off Date, any insurance policies in respect of such
Subsequent Mortgage Loans and all proceeds of any of the
foregoing.
(iii)
The
Seller hereby makes the representations and warranties as set forth
in
Section 2.04 of the Pooling Agreement to the Trustee on behalf of
the
Certificateholders and the Certificate Insurer as of the Subsequent
Transfer Date with respect to the Subsequent Mortgage
Loans.
(iv)
The
Seller hereby makes the representations and warranties as set forth
in
Section 2.08 of the Pooling Agreement to the Trustee on behalf of
the
Certificateholders and the Certificate Insurer as of the Subsequent
Transfer Date.
3. The
Depositor hereby agrees to the following:
(i)
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 each Subsequent
Mortgage Loan included on the Mortgage Loan Schedule, including the
related Cut-Off Date Principal Balance, all interest due thereon
after the
Subsequent Cut-Off Date, all collections in respect of interest and
principal due after the Subsequent Cut-Off Date, any insurance proceeds
in
respect of such Subsequent Mortgage Loans and all proceeds of any
of the
foregoing;
Q-2
(ii)
The
Depositor hereby makes the representations and warranties as set
forth in
Section 2.06 of the Pooling Agreement to the Trustee on behalf of
the
Certificateholders and the Certificate Insurer as of the Subsequent
Transfer Date.
4.
THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS
OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW), AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
5.
The
Subsequent Transfer Agreement may be executed in one or more counterparts,
each of which so executed and delivered shall be deemed an original,
but
all such counterparts together shall constitute but one and the same
instrument.
Q-3
IN
WITNESS WHEREOF, the parties to this Subsequent Transfer Agreement have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
GREENWICH
CAPITAL
ACCEPTANCE, INC.,
as
Depositor
By:
Name:
Title:
GREENWICH
CAPITAL
FINANCIAL PRODUCTS, INC.,
as
Seller
By:
Name:
Title:
U.S.
BANK NATIONAL ASSOCIATION,
not
in its individual capacity, but solely as
Trustee
By:
Name:
Title:
Q-4
EXHIBIT
R
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON
ASSESSMENT OF COMPLIANCE
Reference
is made to that certain Pooling Agreement, dated as of January 1, 2006 (the
“Agreement”), among Greenwich Capital Acceptance, Inc., Greenwich Capital
Financial Products, Inc. and U.S. Bank National Association, as Trustee,
relating to the issuance of the HarborView Mortgage Loan Trust 2006-1 Mortgage
Loan Pass-Through Certificates, Series 2006-1. This certification is delivered
pursuant to Section 8.01(b) of the Agreement. Capitalized terms used herein
but
not otherwise defined shall have the meanings set forth in the
Agreement.
_________________________,
the undersigned, a duly authorized _______________ of the [[Trustee]],
does
hereby certify that the assessment of compliance to be delivered by the
[[Trustee]]
shall
address, at a minimum, the criteria identified below as “Applicable Servicing
Criteria” as identified by a mark in the column titled “Applicable Servicing
Criteria.”
Servicing
Criteria
Applicable
Servicing Criteria
Reference
Criteria
General
Servicing Considerations
1122(d)(1)(i)
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
1122(d)(1)(ii)
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
1122(d)(1)(iii)
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
1122(d)(1)(iv)
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
Cash
Collection and Administration
1122(d)(2)(i)
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
R-1
Servicing
Criteria
Applicable
Servicing Criteria
Reference
Criteria
1122(d)(2)(ii)
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
1122(d)(2)(iii)
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
1122(d)(2)(iv)
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
1122(d)(2)(v)
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
1122(d)(2)(vi)
Unissued
checks are safeguarded so as to prevent unauthorized
access.
1122(d)(2)(vii)
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
Investor
Remittances and Reporting
1122(d)(3)(i)
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
1122(d)(3)(ii)
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
1122(d)(3)(iii)
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
1122(d)(3)(iv)
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
Pool
Asset Administration
1122(d)(4)(i)
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
1122(d)(4)(ii)
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
1122(d)(4)(iii)
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
1122(d)(4)(iv)
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
R-2
Servicing
Criteria
Applicable
Servicing Criteria
Reference
Criteria
1122(d)(4)(v)
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
1122(d)(4)(vi)
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
1122(d)(4)(vii)
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
1122(d)(4)(viii)
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
1122(d)(4)(ix)
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
1122(d)(4)(x)
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
1122(d)(4)(xi)
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
1122(d)(4)(xii)
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
1122(d)(4)(xiii)
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
1122(d)(4)(xiv)
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
1122(d)(4)(xv)
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
[Signature
Page Follows]
R-3
GREENWICH
CAPITAL ACCEPTANCE, INC.,
as Depositor
By:
Name:
Title:
GREENWICH
CAPITAL FINANCIAL PRODUCTS, INC.,
as
Seller
By:
Name:
Title:
R-4
EXHIBIT
S
TRANSACTION
PARTIES
Sponsor
and Seller: Greenwich Capital Financial Products, Inc.
Depositor:
Greenwich Capital Acceptance, Inc.
Trustee:
U.S. Bank National Association
Servicer(s):
Countrywide Home Loans Servicing LP
Originator(s):
Countrywide Home Loans, Inc.
Custodian(s):
The Bank of New York
Certificate
Insurer: Financial Security Assurance Inc.
S-1
SCHEDULE
I
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a Separate Closing Binder entitled “HarborView 2006-1 Mortgage Loan
Schedule” at the Washington DC Offices of McKee Nelson LLP]
SCHEDULE
II
[Reserved]
SCHEDULE
III
YIELD
MAINTENANCE PAYMENTS
[Reserved]
Dates Referenced Herein and Documents Incorporated by Reference
