POOLING AND SERVICING AGREEMENT

EXECUTION

 

 

 

 

GREENWICH CAPITAL ACCEPTANCE, INC.,

Depositor

 

GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.,

Seller

 

WELLS FARGO BANK, N.A.

Master Servicer and Securities Administrator

 

CLAYTON FIXED INCOME SERVICES INC.,

Credit Risk Manager

 

and

 

DEUTSCHE BANK NATIONAL TRUST COMPANY,

Trustee and Custodian

 

 

POOLING AND SERVICING AGREEMENT

 

Dated as of November 1, 2006

 

 

 

__________________________________

 

 

 

HarborView Mortgage Loan Trust

Mortgage Loan Pass-Through Certificates, Series 2006-13

 

Table of Contents

Page

 

Section 1.01.	Defined Terms.	4
Section 1.02.	Accounting .	41
ARTICLE II CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF CERTIFICATES		42
Section 2.01.	Conveyance of Mortgage Loans.	42
Section 2.02.	Acceptance by Trustee.	46
Section 2.03.	Repurchase or Substitution of Mortgage Loans by the Originators and the Seller.	47
Section 2.04.	Representations and Warranties of the Seller with Respect to the Mortgage Loans.	51
Section 2.05.	[Reserved].	52
Section 2.06.	Representations and Warranties of the Depositor.	52
Section 2.07.	Issuance of Certificates.	54
Section 2.08.	Representations and Warranties of the Seller.	54
Section 2.09.	Covenants of the Seller.	56
ARTICLE III ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE LOANS; CREDIT RISK MANAGER		56
Section 3.01.	Master Servicer to Service and Administer the Mortgage Loans.	56
Section 3.02.	REMIC-Related Covenants.	58
Section 3.03.	Monitoring of Servicers.	58
Section 3.04.	Fidelity Bond.	59
Section 3.05.	Power to Act; Procedures.	60
Section 3.06.	Due-on-Sale Clauses; Assumption Agreements.	61
Section 3.07.	Release of Mortgage Files.	61
Section 3.08.	Documents, Records and Funds in Possession of Master Servicer to be Held for Trust Fund.	62
Section 3.09.	Standard Hazard Insurance and Flood Insurance Policies	63
Section 3.10.	Presentment of Claims and Collection of Proceeds.	63
Section 3.11.	Maintenance of the Primary Insurance Policies.	64
Section 3.12.	Trustee to Retain Possession of Certain Insurance Policies and Documents.	64
Section 3.13.	Realization Upon Defaulted Mortgage Loans.	65
Section 3.14.	Additional Compensation to the Master Servicer.	65
Section 3.15.	REO Property.	65
Section 3.16.	Assessments of Compliance and Attestation Reports.	66
Section 3.17.	Annual Compliance Statement.	68
Section 3.18.	Sarbanes-Oxley Certification.	69
Section 3.19.	Reports Filed with Securities and Exchange Commission.	69
Section 3.20.	Additional Information.	75

 

This Pooling and Servicing Agreement is dated as of November 1, 2006 (the “ Agreement ”), among GREENWICH CAPITAL ACCEPTANCE, INC., a Delaware corporation, as depositor (the “ Depositor ”), GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, as seller (the “ Seller ”), WELLS FARGO BANK, N.A., a national banking association, as master servicer (in such capacity, the “ Master Servicer ”) and as securities administrator (in such capacity, the “ Securities Administrator ”), CLAYTON FIXED INCOME SERVICES INC., as credit risk manager (the “Credit Risk Manager”), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association, as trustee (the “ Trustee ”) and as custodian.

 

PRELIMINARY STATEMENT:

 

 

Lower-Tier REMIC Interests

Lower-Tier REMIC Interest  Designation		Interest Rate			Initial Principal Balance			Corresponding Class of Certificates
LT-A			(1)		$	380,792,000.00			A
LT-AR			(1)		$	100.00			A-R
LT-B1			(1)		$	8,865,000.00			B-1
LT-B2			(1)		$	4,433,000.00			B-2
LT-B3			(1)		$	22,000.00			B-3
LT-B4			(1)		$	2,619,000.00			B-4
LT-B5			(1)		$	1,813,000.00			B-5
LT-B6			(1)		$	1,410,689.00			B-6
LT-P			(1)		$	100.00			P
LT-I			(2)			(2)			N/A
LT-R			(3)			(3)			N/A

On any Distribution Date, after taking into account principal distributions under priorities (i) and (ii) above, Realized Losses shall be allocated among the Lower-Tier Interests in the same order of priority in which principal is distributed among such Lower-Tier Interests pursuant to priority (i) above.

 

 

ARTICLE I

DEFINITIONS; DECLARATION OF TRUST

 

Whenever used in this Agreement or in the Preliminary Statement, the following words and phrases, unless the context otherwise requires, shall have the meanings specified in this Article. All calculations of interest described herein shall be made on the basis of an assumed 360-day year consisting of twelve 30-day months unless otherwise indicated in this Agreement.

 

“ Accepted Master Servicing Practices ”: With respect to any Mortgage Loan, as applicable, either (x) those customary mortgage servicing practices of prudent mortgage servicing institutions that master service mortgage loans of the same type and quality as such Mortgage Loan in the jurisdiction where the related Mortgaged Property is located, to the extent applicable to the Trustee (as successor Master Servicer) or the Master Servicer (except in its capacity as successor to any Servicer), or (y) as provided in the Servicing Agreements, to the extent applicable to the Servicers, but in no event below the standard set forth in clause (x).

 

“ Account ”: The Distribution Account, the Yield Maintenance Account, the Final Maturity Reserve Account, the Basis Risk Reserve Fund or each Servicing Account, as the context requires.

 

“ Accrual Period ”: With respect to each Distribution Date and the LIBOR Certificates, the period beginning on the immediately preceding Distribution Date (or the Closing Date, in the case of the first Distribution Date) and ending on the day immediately preceding such Distribution Date. Interest for such Classes of Certificates will be calculated based upon a 360-day year and the actual number of days in each Accrual Period. With respect to each Distribution Date and any Class of Lower Tier Regular Interests and the Class A-R, Class X, Class B-4, Class B-5 and Class B-6 Certificates, the calendar month prior to the month of such Distribution Date. Interest for such Lower Tier Regular Interests and such Classes will be calculated based upon a 360-day year consisting of twelve 30-day months in each Accrual Period.

 

“ Additional Disclosure Notification ”: As defined in Section 3.19(a).

 

“ Additional Form 10-D Disclosure ”: As defined in Section 3.19(a).

 

“ Additional Form 10-K Disclosure ”: As defined in Section 3.19(b).

 

“ Adjustment Date ”: With respect to each Mortgage Loan, each adjustment date on which the related Loan Rate changes pursuant to the related Mortgage Note. The first Adjustment Date following the Cut-Off Date as to each Mortgage Loan is set forth in the Mortgage Loan Schedule.

 

“ Advance ”: With respect to any Distribution Date and any Mortgage Loan or REO Property, any advance made by the Master Servicer (including, without limitation, the Trustee in its capacity as successor Master Servicer) in respect of such Distribution Date pursuant to Section 5.05 (or by the Trustee pursuant to Section 7.02 as successor Master Servicer) or by a Servicer in accordance with the related Servicing Agreement.

“ Adverse REMIC Event ”: Either (i) the loss of status as a REMIC, within the meaning of Section 860D of the Code, for any group of assets identified as a REMIC in the Preliminary Statement to this Agreement, or (ii) the imposition of any tax, including the tax imposed under Section 860F(a)(1) on prohibited transactions, and the tax imposed under Section 860G(d) on certain contributions to a REMIC, on any REMIC created hereunder to the extent such tax would be payable from assets held as part of the Trust Fund.

 

“ Affiliate ”: With respect to any Person, any other Person controlling, controlled by or under common control with such Person. For purposes of this definition, “control” means the power to direct the management and policies of a Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise and “controlling” and “controlled” shall have meanings correlative to the foregoing.

 

“ Aggregate Subordinate Percentage ”: As to any Distribution Date, the percentage equivalent of a fraction the numerator of which is the aggregate of the Class Principal Balance of the Subordinate Certificates and the denominator of which is the Pool Balance for such Distribution Date.

 

“ Agreement ”: This Pooling and Servicing Agreement, dated as of November 1, 2006, as amended, supplemented and otherwise modified from time to time.

 

“ Applicable Credit Support Percentage ”: As defined in Section 5.01(d).

 

“ Assignment ”: With respect to any Mortgage, an assignment of mortgage, notice of transfer or equivalent instrument, in recordable form, which is sufficient, under the laws of the jurisdiction in which the related Mortgaged Property is located, to reflect or record the sale of such Mortgage.

 

“ Available Funds ”: With respect to any Distribution Date, an amount equal to (i) the sum, without duplication, of (a) the aggregate of the Monthly Payments received on or prior to the related Determination Date (excluding Monthly Payments due in future Due Periods but received by the related Determination Date) in respect of the Mortgage Loans, (b) Net Liquidation Proceeds, Insurance Proceeds (including from primary mortgage insurance policies), Principal Prepayments (excluding Prepayment Premium Amounts), Recoveries and other unscheduled recoveries of principal and interest in respect of the Mortgage Loans received during the related Prepayment Period, (c) the aggregate of any amounts received in respect of REO Properties for such Distribution Date in respect of the Mortgage Loans, (d) the aggregate of any amounts of Interest Shortfalls (excluding for such purpose all shortfalls as a result of Relief Act Reductions) paid by the Servicers pursuant to the related Servicing Agreements and Compensating Interest Payments deposited in the Distribution Account for that Distribution Date in respect of the Mortgage Loans, (e) the aggregate of the Purchase Prices, Substitution Adjustments Repurchase Prices and other amounts collected for purchases pursuant to Sections 2.03 or 3.25 or substitutions pursuant to Section 2.03 deposited in the Distribution Account during the related Prepayment Period in respect of the Mortgage Loans, (f) the aggregate of any Advances made by the Servicers and Advances made by the Master Servicer for such Distribution Date in respect of the Mortgage Loans, (g) the aggregate of any Advances made by the Trustee as successor Master Servicer for that Distribution Date pursuant to Section 7.02 hereof in respect of the Mortgage Loans and (h) the Termination Price on the Distribution Date on which the Trust Fund is terminated pursuant to Section 10.01; minus (ii) the sum of (v) to the extent of amounts attributable to interest, the Expense Fees for such Distribution Date in respect of the Mortgage Loans, (w) to the extent of amounts attributable to interest or principal, as applicable, amounts in reimbursement for Advances previously made in respect of the Mortgage Loans and other amounts as to which the Servicers, the Securities Administrator, the Master Servicer, the Trustee, the Credit Risk Manager and the Custodian are entitled to be reimbursed pursuant to Section 4.03, (x) first, to the extent of amounts attributable to interest, and second, if such amounts are insufficient, to the extent of amounts attributable to principal, the amount payable to the Trustee, the Master Servicer, the Securities Administrator and the Custodian pursuant to Sections 3.27(b), 3.28(c) and 8.05 hereof in respect of the Mortgage Loans, and (y) amounts deposited in the Distribution Account, as the case may be, in error, in respect of the Mortgage Loans, in each case without duplication.

“ Bankruptcy Code ”: The Bankruptcy Reform Act of 1978 (Title 11 of the United States Code), as amended.

 

“ Basis Risk Reserve Fund ”: A fund created as part of the Trust Fund pursuant to Section 5.07 of this Agreement but which is not an asset of any of the REMICs.

 

“ Basis Risk Shortfall ”: With respect to any Distribution Date and the LIBOR Certificates, the sum of:

 

“ Book-Entry Certificates ”: Any of the Certificates that shall be registered in the name of the Depository or its nominee, the ownership of which is reflected on the books of the Depository or on the books of a Person maintaining an account with the Depository (directly, as a “Depository Participant”, or indirectly, as an indirect participant in accordance with the rules of the Depository and as described in Section 6.02 hereof). On the Closing Date, all Classes of the Certificates other than the Physical Certificates shall be Book-Entry Certificates.

 

“ Bulk PMI Fee ”: Not applicable.

 

“ Bulk PMI Fee Rate ”: Not applicable.

“ Bulk PMI Policy ”: Not applicable.

 

“ Business Day ”: Any day other than a Saturday, a Sunday or a day on which banking or savings institutions in the State of California, the State of Maryland, the State of Minnesota, the State of Texas, the State of New York or in the city in which the Corporate Trust Office of the Trustee or the Securities Administrator is located are authorized or obligated by law or executive order to be closed.

 

“ Call Option ”: The right to terminate this Agreement and the Trust Fund pursuant to the second paragraph of Section 10.01(a) hereof.

 

“ Call Option Date ”: As defined in Section 10.01(a) hereof.

 

“ Certificate ”: Any Regular Certificate, Residual Certificate Class or Class P Certificate.

 

“ Certificate Notional Balance ”: With respect to each Certificate of any Class of Interest-Only Certificates and any date of determination, the product of (i) the Class Notional Balance of such Class and (ii) the applicable Percentage Interest of such Certificate.

 

“ Certificate Owner ”: With respect to each Book-Entry Certificate, any beneficial owner thereof and with respect to each Physical Certificate, the Certificateholder thereof.

 

“ Certificate Principal Balance ”: With respect to each Certificate of a given Class (other than any Interest-Only Certificate) and any date of determination, the product of (i) the Class Principal Balance of such Class and (ii) the applicable Percentage Interest of such Certificate.

 

“ Certificate Register ” and “ Certificate Registrar ”: The register maintained and registrar appointed pursuant to Section 6.02 hereof. Wells Fargo Bank, N.A. shall act as Certificate Registrar, for so long as it is the Securities Administrator under this Agreement.

 

“ Certificateholder ” or “ Holder ”: The Person in whose name a Certificate is registered in the Certificate Register, except that a Disqualified Organization or non-U.S. Person shall not be a Holder of the Residual Certificate for any purpose hereof; provided that solely for the purposes of taking any action or giving any consent pursuant to this Agreement, any Certificate registered in the name of the Depositor, the Securities Administrator, the Master Servicer, the Trustee, any Servicer, the Credit Risk Manager or any Affiliate thereof shall be deemed not to be outstanding in determining whether the requisite percentage necessary to effect any such consent has been obtained, except that, in determining whether the Trustee shall be protected in relying upon any such consent, only Certificates which a Responsible Officer of the Trustee knows to be so owned shall be disregarded.

 

“ Certification Parties ”: As defined in Section 3.18.

 

“ Certifying Person ”: As defined in Section 3.18.

“ Class ”: Collectively, Certificates that have the same priority of payment and bear the same class designation and the form of which is identical except for variation in the Percentage Interest evidenced thereby.

 

“ Class LT-R Interest ”: As described in the Preliminary Statement.

 

“ Class Notional Balance ”: With respect to the Class X Certificates and any Distribution Date, the Class X Notional Balance.

 

“ Class P Distributable Amount ”: With respect to each Distribution Date, all Prepayment Premium Amounts in respect of the Mortgage Loans received by the Servicers for the related Prepayment Period plus, on the first Distribution Date after which no Mortgage Loan is subject to payment of a Prepayment Premium Amount, $100.

 

“ Class Principal Balance ”: As to any Distribution Date, with respect to any Class of Certificates (other than the Interest-Only Certificates), the Original Class Principal Balance thereof as reduced by the sum of (x) all amounts actually distributed in respect of principal of that Class on all prior Distribution Dates, (y) all Realized Losses, if any, actually allocated to that Class on all prior Distribution Dates and (z) any applicable Writedown Amount; provided , however , that pursuant to Section 5.08, the Class Principal Balance of a Class of Certificates may be increased up to the amount of Realized Losses previously allocated to such Class pursuant to Section 5.03 in the event that there is a Recovery on a Mortgage Loan, and the Certificate Principal Balance of any individual Certificate of such Class will be increased by its pro rata share of the increase to such Class.

 

“ Class Subordination Percentage ”: With respect to each Class of Subordinate Certificates and any Distribution Date, the percentage equivalent of a fraction the numerator of which is the Class Principal Balance of such Class immediately before such Distribution Date and the denominator of which is the aggregate of the Class Principal Balances of all Classes of Certificates immediately before such Distribution Date.

 

“ Class X Certificate ”: Any of the Class X Certificates as designated on the face thereof, executed by the Securities Administrator and authenticated and delivered by the Certificate Registrar, substantially in the form annexed hereto as Exhibit A-2, evidencing the ownership of a “regular interest” in the Upper Tier REMIC created hereunder and representing the right to distributions as set forth herein and therein.

 

“ Class X Notional Balance ”: For the Class X Certificates and for any Distribution Date, the aggregate Class Principal Balance of the LIBOR Certificates immediately prior to such Distribution Date (initially, equal to $397,112,000.00).

 

“ Close of Business ”: As used herein, with respect to any Business Day and location, 5:00 p.m. at such location.

 

“ Closing Date ”: December 13, 2006.

 

“ Code ”: The Internal Revenue Code of 1986, as amended.

 

“ Collateral Account ”: The account established and maintained by the Trustee in accordance with the provisions of Section 4.04.

“ Commission ”: U.S. Securities and Exchange Commission.

 

“ Compensating Interest Payment ”: With respect to any Distribution Date, an amount equal to the amount, if any, by which (x) the aggregate amount of any Interest Shortfalls (excluding for such purpose all shortfalls as a result of Relief Act Reductions) required to be paid by the Servicers pursuant to the related Servicing Agreement with respect to such Distribution Date, exceeds (y) the aggregate amount actually paid by the Servicers in respect of such shortfalls; provided, that such amount, to the extent payable by the Master Servicer or the Trustee as successor master servicer, shall not exceed the aggregate Master Servicing Fee that would be payable to the Master Servicer in respect of such Distribution Date without giving effect to any Compensating Interest Payment .

 

“ Cooperative Corporation ”: The entity that holds title (fee or an acceptable leasehold estate) to the real property and improvements constituting the Cooperative Property and which governs the Cooperative Property, which Cooperative Corporation must qualify as a Cooperative Housing Corporation under Section 216 of the Code.

 

“ Cooperative Loan ”: Any Mortgage Loan secured by Cooperative Shares and a Proprietary Lease.

 

“ Cooperative Loan Documents ”: With respect to any Cooperative Loan, (i) the Cooperative Shares, together with a stock power in blank; (ii) the original or a copy of the executed Security Agreement and the assignment of the Security Agreement in blank; (iii) the original or a copy of the executed Proprietary Lease and the original assignment of the Proprietary Lease endorsed in blank; (iv) the original, if available, or a copy of the executed Recognition Agreement and, if available, the original assignment of the Recognition Agreement (or a blanket assignment of all Recognition Agreements) endorsed in blank; (v) the executed UCC-1 financing statement with evidence of recording thereon, which has been filed in all places required to perfect the security interest in the Cooperative Shares and the Proprietary Lease; and (vi) executed UCC amendments (or copies thereof) or other appropriate UCC financing statements required by state law, evidencing a complete and unbroken line from the mortgagee to the Trustee with evidence of recording thereon (or in a form suitable for recordation).

 

“ Cooperative Property ”: The real property and improvements owned by the Cooperative Corporation, that includes the allocation of individual dwelling units to the holders of the Cooperative Shares of the Cooperative Corporation.

 

“ Cooperative Shares ”: Shares issued by a Cooperative Corporation.

 

“ Cooperative Unit ”: A single family dwelling located in a Cooperative Property.

 

“ Corporate Trust Office ”: With respect to the Trustee, the principal corporate trust office of the Trustee at which at any particular time its corporate trust business in connection with this Agreement shall be administered, which office at the date of the execution of this instrument is located at 1761 East St. Andrew Place, Santa Ana, California 92705, Attention: HarborView 2006-13, or at such other address as the Trustee may designate from time to time by notice to the Certificateholders, the Depositor, the Master Servicer, the Securities Administrator and the Seller. With respect to the Securities Administrator and the Certificate Registrar and (i) presentment of Certificates for registration of transfer, exchange or final payment, Wells Fargo Bank, N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, Attention: Corporate Trust, HarborView Mortgage Loan Trust 2006-13, and (ii) for all other purposes, P.O. Box 98, Columbia, Maryland 21046 (or for overnight deliveries, 9062 Old Annapolis Road, Columbia, Maryland 21045), Attention: Corporate Trust, HarborView 2006-13.

“ Corresponding Class ”: With respect to each class of Lower-Tier Regular Interests, the Class or Classes of Certificates corresponding to such Class as set forth in the Preliminary Statement.

 

“ Credit Risk Management Agreement ”: Either (i) any of the credit risk management agreements dated as of the Closing Date, entered into by the related Servicer and the Credit Risk Manager or (ii) the credit risk management agreement dated as of the Closing Date, entered into by the Master Servicer and the Credit Risk Manager, as applicable.

 

“ Credit Risk Manager ”: Clayton Fixed Income Services Inc., a Colorado corporation, and its successors and assigns.

 

“ Credit Risk Manager Fee ”: With respect to any Distribution Date and each Mortgage Loan, an amount equal to the product of (a) one twelfth, (b) the Credit Risk Manager Fee Rate and (c) the Scheduled Principal Balance of such Mortgage Loan as of the first day of the related Collection Period.

 

“ Credit Risk Manager Fee Rate ”: 0.0050% per annum.

 

“ Current Interest ”: With respect to each Class of Certificates (other than the Class P Certificates) and any Distribution Date an amount equal to the sum of (i) interest accrued during the related Accrual Period at the applicable Pass-Through Rate on the Class Certificate Principal Balance or Class Certificate Notional Balance, as applicable, of that Class immediately prior to such Distribution Date, plus (ii) the excess of the amount determined under clause (i) above for all prior Distribution Dates over the amount actually distributed as interest on such Class on such Prior Distribution Dates. Notwithstanding the foregoing, however, on any Distribution Date for which there exists a Net Interest Shortfall, the Net Interest Shortfall shall be apportioned among the Classes of Certificates then outstanding in proportion to and in reduction of the amount that would have been the Current Interest for such Distribution Date but for the existence of such Net Interest Shortfall.

 

“ Custodial Agreement ”: Not applicable.

 

“ Custodian ”: Deutsche Bank National Trust Company, and its successors acting as custodian of the Mortgage Files, as indicated on the Mortgage Loan Schedule.

 

“ Cut-Off Date ”: With respect to any Mortgage Loan other than a Qualified Substitute Mortgage Loan, the Close of Business in New York City on November 1, 2006. With respect to any Qualified Substitute Mortgage Loan, the date designated as such on the Mortgage Loan Schedule (as amended).

“ Cut-Off Date Aggregate Principal Balance ”: The aggregate of the Cut-Off Date Principal Balances of all of the Mortgage Loans.

 

“ Cut-Off Date Principal Balance ”: With respect to any Mortgage Loan, the principal balance thereof remaining to be paid, after application of all scheduled principal payments due on or before the Cut-Off Date whether or not received as of the Cut-Off Date (or as of the applicable date of substitution with respect to a Qualified Substitute Mortgage Loan).

 

“ Debt Service Reduction ”: With respect to any Mortgage Loan, a reduction in the scheduled Monthly Payment for that Mortgage Loan by a court of competent jurisdiction in a proceeding under the Bankruptcy Code, unless the reduction results from a Deficient Valuation.

 

“ Deficient Valuation ”: With respect to any Mortgage Loan, a valuation of the related Mortgaged Property by a court of competent jurisdiction in an amount less than the then outstanding principal balance of the Mortgage Loan, which valuation results from a proceeding initiated under the Bankruptcy Code.

 

“ Definitive Certificates ”: Any Certificate evidenced by a Physical Certificate and any Certificate issued in lieu of a Book-Entry Certificate pursuant to Section 6.02(c) or (d) hereof.

 

“ Deleted Mortgage Loan ”: A Mortgage Loan replaced or to be replaced by one or more Qualified Substitute Mortgage Loans.

 

“ Delinquent ”: Any Mortgage Loan with respect to which the Monthly Payment due on a Due Date is not made.

 

“ Depositor ”: Greenwich Capital Acceptance, Inc., a Delaware corporation, or any successor in interest.

 

“ Depository ”: The initial Depository shall be The Depository Trust Company, whose nominee is Cede & Co., or any other organization registered as a “clearing agency” pursuant to Section 17A of the Exchange Act. The Depository shall initially be the registered Holder of the Book-Entry Certificates. The Depository shall at all times be a “clearing corporation” as defined in Section 8-102(3) of the Uniform Commercial Code of the State of New York.

 

“ Depository Participant ”: A broker, dealer, bank or other financial institution or other person for whom from time to time a Depository effects book-entry transfers and pledges of securities deposited with the Depository.

 

“ Determination Date ”: For any Distribution Date and each Mortgage Loan, the date each month, as set forth in the Servicing Agreements, on which the Servicers determine the amount of all funds required to be remitted to the Master Servicer on the Servicer Remittance Date with respect to the Mortgage Loans it is servicing.

 

“ Disqualified Organization ”: A “disqualified organization” defined in Section 860E(e)(5) of the Code, or any other Person so designated by the Securities Administrator based upon an Opinion of Counsel provided to the Securities Administrator by nationally recognized counsel acceptable to the Securities Administrator that the holding of an ownership interest in the Residual Certificate by such Person may cause the Trust Fund or any Person having an ownership interest in any Class of Certificates (other than such Person) to incur liability for any federal tax imposed under the Code that would not otherwise be imposed but for the transfer of an ownership interest in the Residual Certificate to such Person.

 

“ Distressed Mortgage Loan ”: Any Mortgage Loan that at the date of determination is Delinquent in payment for a period of 90 days or more without giving effect to any grace period permitted by the related Mortgage Note or for which the Servicer on behalf of the Trust Fund has accepted a deed in lieu of foreclosure.

 

“ Distribution Account ”: The trust account or accounts created and maintained by the Securities Administrator pursuant to Section 4.02 hereof for the benefit of the Certificateholders which shall be entitled “Distribution Account, Wells Fargo Bank, N.A., as Securities Administrator for Deutsche Bank National Trust Company, as Trustee, in trust for the registered Holders of HarborView Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates, Series 2006-13” and which must be an Eligible Account.

 

“ Distribution Account Income ”: With respect to any Distribution Date, any interest or other investment income earned on funds deposited in the Distribution Account during the month of such Distribution Date.

 

“ Distribution Date ”: The 19th day of each month, or, if such day is not a Business Day, the next Business Day commencing in December 2006.

 

“ Distribution Date Statement ”: As defined in Section 5.04(a) hereof.

 

“ Downey ”: Downey Savings and Loan Association, F.A., and its successors and assigns, in its capacity as Originator of the Downey Mortgage Loans.

 

“ Downey Mortgage Loans ”: The Mortgage Loans for which Downey is listed as “Originator” on the Mortgage Loan Schedule.

 

“ Downey Purchase Agreement ”: The Master Mortgage Loan Purchase and Servicing Agreement, dated as of December 1, 2005, between GCFP, as purchaser, and Downey, as seller, as the same may be amended from time to time, and any assignments and conveyances related to the Downey Mortgage Loans.

 

“ Due Date ”: With respect to each Mortgage Loan and any Distribution Date, the first day of the calendar month in which such Distribution Date occurs on which the Monthly Payment for such Mortgage Loan was due, exclusive of any days of grace.

 

“ Due Period ”: With respect to any Distribution Date, the period commencing on the second day of the month preceding the month in which such Distribution Date occurs and ending on the first day of the month in which such Distribution Date occurs.

 

“ Eligible Account ”: Any of:

 

“ ERISA ”: The Employee Retirement Income Security Act of 1974, as amended.

 

“ ERISA-Restricted Certificates ”: (i) the Class B-4, Class B-5, Class B-6 Certificates, the Class P Certificate and the Residual Certificate, (ii) any other Certificates that are not rated at least “BBB-” (or its equivalent) by at least one Rating Agency upon acquisition or (iii) in general, any Certificate that does not satisfy the applicable rating requirement under the Underwriter’s Exemption.

 

“ ERISA-Qualifying Underwriting ”: A best efforts or firm commitment underwriting or private placement that meets the requirements of an Underwriter’s Exemption.

 

“ Event of Default ”: In respect of the Master Servicer, one or more of the events (howsoever described) set forth in Section 7.01 hereof as an event or events upon the occurrence and continuation of which the Master Servicer may be terminated.

 

“ Exchange Act ”: The Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

 

“ Expense Fee ” With respect to any Mortgage Loan, the sum of (i) the Master Servicing Fee, (ii) the Servicing Fee with respect to the Servicers and (iii) the Credit Risk Manager Fee.

 

“ Expense Fee Rate ”: With respect to any Mortgage Loan, the per annum rate at which the Expense Fee accrues for such Mortgage Loan as set forth in the Mortgage Loan Schedule.

 

“ Fannie Mae ”: The Federal National Mortgage Association or any successor thereto.

 

“ FDIC ”: The Federal Deposit Insurance Corporation or any successor thereto.

 

“ Final Distribution Date ”: The Distribution Date occurring in December 2036.

 

“ Final Maturity Reserve Account ”: The account created pursuant to Section 5.09 of this Agreement.

 

“ Final Maturity Reserve Amount ”: With respect to each Distribution Date prior to the Distribution Date in December 2026, zero. On the Distribution Date in December 2026 and on each Distribution Date thereafter until the Final Maturity Reserve Termination Date, an amount equal to the lesser of (x) the product of (i) the Final Maturity Reserve Rate divided by 12 and (ii) the aggregate Stated Principal Balance of the Mortgage Loans, (y) the interest portion of Available Funds before taking into account any distributions pursuant to Section 5.01(a) of this Agreement and after payment of any fees and expenses of the Trust pursuant to this Agreement and (z) the Final Maturity Reserve Shortfall Amount. No deposit is required on any Distribution Date if the aggregate Stated Principal Balance of Mortgage Loans having 40-year original terms to maturity on such Distribution Date is less than or equal to the aggregate principal balance set forth in the Final Maturity Reserve Schedule for such Distribution Date.

 

“ Final Maturity Reserve Rate ”: A per annum rate equal to the product of (i) 0.80% and (ii) a fraction, the numerator of which is the aggregate Stated Principal Balance as of the applicable Cut-off Date of the Mortgage Loans having 40-year original terms to maturity and the denominator of which is the aggregate Stated Principal Balance of the Mortgage Loans as of the Cut-off Date.

 

“ Final Maturity Reserve Schedule ”: With respect to each Distribution Date on or after the Distribution Date in December 2026 through the Final Maturity Reserve Termination Date, the aggregate principal balance set forth on Schedule II hereto for that Distribution Date.

 

“ Final Maturity Reserve Shortfall Amount ”: For each Distribution Date, the lesser of (i) $5,293,604.00 or (ii) a fraction, the numerator of which is the Stated Principal Balance of the Mortgage Loans having 40-year original terms to maturity on such Distribution Date and the denominator of which is the aggregate Class Principal Balance of the Certificates (other than any Interest-Only Certificates).

 

“ Final Maturity Reserve Termination Date ”: With respect to each Distribution Date on or after the Distribution Date in December 2026, the earlier of (i) the Distribution Date in June 2036 or (ii) the termination of the Trust Fund.

 

“ Final Maturity Reserve Trust ”: The corpus of a trust created pursuant to Section 5.09 of this Agreement and designated as the “Final Maturity Reserve Trust,” consisting of the Final Maturity Reserve Account, but which is not an asset of any REMIC.

 

“ Final Recovery Determination ”: With respect to any defaulted Mortgage Loan or any REO Property (other than a Mortgage Loan or REO Property purchased by the Seller pursuant to or as contemplated by Sections 2.03, 3.25 and 10.01), a determination made by the related Servicer, reported to the Master Servicer, that all Insurance Proceeds, Liquidation Proceeds and other payments or recoveries which the related Servicer expects to be finally recoverable in respect thereof have been so recovered.

 

“ First Republic ”: First Republic Bank, and its successors and assigns, in its capacity as Originator of the First Republic Mortgage Loans.

 

“ First Republic Mortgage Loans ”: The Mortgage Loans for which First Republic is listed as “Originator” on the Mortgage Loan Schedule.

 

“ First Republic Purchase Agreement ”: The Master Mortgage Loan Purchase and Servicing Agreement, dated as of July 1, 2003, as amended and restated to and including February 1, 2006, between GCFP, as purchaser, and First Republic, as seller, as the same may be amended from time to time, and any assignments and conveyances related to the First Republic Mortgage Loans.

 

“Fitch” : Fitch Ratings, Inc., or any successor thereto.

 

“ Form 8-K Disclosure Information ”: As defined in Section 3.19(c).

 

“ Freddie Mac ”: The Federal Home Loan Mortgage Corporation or any successor thereto.

 

“ GCFP ”: Greenwich Capital Financial Products, Inc., and its successors and assigns.

 

“ GMAC ”: GMAC Mortgage, LLC (as successor in interest to GMAC Mortgage Corporation), and any successors thereto, in its capacity as Originator of the GMAC Mortgage Loans.

 

“ GMAC Mortgage Loans ”: The Mortgage Loans for which GMAC is listed as “Originator” on the Mortgage Loan Schedule.

 

“ GMAC Purchase Agreement ”: The Master Flow Sale and Servicing Agreement dated and effective as of April 1, 2004, between the GCFP and GMAC (Adjustable Rate Conventional Mortgage Loans, Group No. 2004-NC1), as amended by Amendment Number One, dated as of September 29, 2005, and as amended by Amendment Number Two, dated as of September 29, 2005, as the same may be amended from time to time, and any assignments and conveyances related to the GMAC Mortgage Loans.

 

“ Gross Margin ”: With respect to each Mortgage Loan, the fixed percentage set forth in the related Mortgage Note that is added to the applicable Index on each Adjustment Date in accordance with the terms of the related Mortgage Note used to determine the Loan Rate for such Mortgage Loan.

 

“ Indemnified Persons ”: The Trustee (individually in its corporate capacity and in all capacities hereunder), the Master Servicer, the Depositor, the Securities Administrator (in all capacities hereunder) and the Custodian and their respective officers, directors, agents and employees and, with respect to the Trustee, any separate co-trustee and its officers, directors, agents and employees.

 

“ Independent ”: When used with respect to any accountants, a Person who is “independent” within the meaning of Rule 2-01(B) of the Securities and Exchange Commission’s Regulation S-X. Independent means, when used with respect to any other Person, a Person who (A) is in fact independent of another specified Person and any affiliate of such other Person, (B) does not have any material direct or indirect financial interest in such other Person or any affiliate of such other Person, (C) is not connected with such other Person or any affiliate of such other Person as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions and (D) is not a member of the immediate family of a Person defined in clause (B) or (C) above.

 

“ Index ”: With respect to each Mortgage Loan and each Adjustment Date, the index specified in the related Mortgage Note.

 

“ Initial Certificate Principal Balance ”: With respect to any Certificate other than the Interest-Only Certificates, the amount designated “Initial Certificate Principal Balance” on the face thereof.

 

“ Initial Certificate Notional Balance ”: With respect to the Interest-Only Certificates, the amount designated “Initial Certificate Notional Balance” on the face thereof.

 

“ Insurance Proceeds ”: With respect to any Mortgage Loan, proceeds of any title policy, hazard policy or other insurance policy covering a Mortgage Loan, to the extent such proceeds are not to be applied to the restoration of the related Mortgaged Property or released to the related Mortgagor in accordance with the related Servicing Agreement.

 

“ Interest-Only Certificate ”: Any of the Class X Certificates.

 

“ Interest Shortfall ”: With respect to any Distribution Date and each Mortgage Loan that during the related Prepayment Period was the subject of a Principal Prepayment or a reduction of its Monthly Payment under the Relief Act or similar state or local law, an amount determined as follows:

 

 

“ Latest Possible Maturity Date ”: As determined as of the Cut-Off Date, the Distribution Date following the fifth anniversary of the scheduled maturity date of the Mortgage Loan having the latest scheduled maturity date as of the Cut-Off Date.

 

“ Lender-Paid Mortgage Insurance Loan ”: Not Applicable.

 

“ LIBOR ”: With respect to the first Accrual Period, the Initial LIBOR Rate. With respect to each subsequent Accrual Period, a per annum rate determined on the LIBOR Determination Date in the following manner by the Securities Administrator on the basis of the “Interest Settlement Rate” set by the BBA for one-month United States dollar deposits, as such rates appear on the Telerate Page 3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date.

 

“ LIBOR Business Day ”: Any day on which banks in London, England and The City of New York are open and conducting transactions in foreign currency and exchange.

 

“ LIBOR Certificates ”: The Class A, Class B-1, Class B-2 and Class B-3 Certificates.

 

“ LIBOR Determination Date ”: The second LIBOR Business Day immediately preceding the commencement of each Accrual Period for the LIBOR Certificates.

 

“ Liquidated Mortgage Loan ”: With respect to any Distribution Date, any Mortgage Loan in respect of which the related Servicer or the Master Servicer have determined, in accordance with the servicing procedures specified herein, as of the end of the related Prepayment Period, that all Liquidation Proceeds that it expects to recover with respect to the liquidation of such Mortgage Loan or disposition of the related REO Property have been recovered.

 

“ Liquidation Event ”: With respect to any Mortgage Loan, any of the following events: (i) such Mortgage Loan is paid in full; (ii) a Final Recovery Determination is made as to such Mortgage Loan; or (iii) such Mortgage Loan is removed from the Trust Fund by reason of its being purchased, sold or replaced pursuant to or as contemplated hereunder. With respect to any REO Property, either of the following events: (i) a Final Recovery Determination is made as to such REO Property; or (ii) such REO Property is removed from the Trust Fund by reason of its being sold or purchased pursuant to Section 10.01 hereof or the applicable provisions of the related Servicing Agreement.

 

“ Liquidation Expenses ”: With respect to a Mortgage Loan in liquidation, unreimbursed expenses paid or incurred by or for the account of the Master Servicer or the related Servicers, such expenses including (a) property protection expenses, (b) property sales expenses, (c) foreclosure and sale costs, including court costs and reasonable attorneys’ fees, and (d) similar expenses reasonably paid or incurred in connection with liquidation.

 

“ Liquidation Proceeds ”: With respect to any Mortgage Loan, the amount (other than amounts received in respect of the rental of any REO Property prior to REO Disposition) received by the related Servicer as proceeds from the liquidation of such Mortgage Loan, as determined in accordance with the applicable provisions of the related Servicing Agreement, other than Recoveries; provided that with respect to any Mortgage Loan or REO Property repurchased, substituted or sold pursuant to or as contemplated hereunder, or pursuant to the applicable provisions of the related Servicing Agreement, “Liquidation Proceeds” shall also include amounts realized in connection with such repurchase, substitution or sale.

 

“ Loan Rate ”: With respect to each Mortgage Loan, the annual rate at which interest accrues on such Mortgage Loan from time to time in accordance with the provisions of the related Mortgage Note.

 

“ Loan-to-Value Ratio ”: With respect to each Mortgage Loan and any date of determination, a fraction, expressed as a percentage, the numerator of which is the Principal Balance of the Mortgage Loan at such date of determination and the denominator of which is the Value of the related Mortgaged Property.

 

“ Lost Note Affidavit ”: With respect to any Mortgage Loan as to which the original Mortgage Note has been lost or destroyed and has not been replaced, an affidavit from the Seller certifying that the original Mortgage Note has been lost, misplaced or destroyed (together with a copy of the related Mortgage Note and indemnifying the Trust Fund against any loss, cost or liability resulting from the failure to deliver the original Mortgage Note) in the form of Exhibit H hereto.

 

“ Lower-Tier Regular Interest ”: Any one of the interests in the Lower-Tier REMIC, as described in the Preliminary Statement.

 

“ Lower-Tier REMIC ”: As described in the Preliminary Statement.

 

“ Majority Certificateholders ”: The Holders of Certificates evidencing at least 51% of the Voting Rights.

 

“ Master Consulting Agreement ”: The master consulting agreement dated as of April 18, 2005, by and between Greenwich Capital Markets, Inc. and the Credit Risk Manager.

 

“ Master Servicer ”: Wells Fargo Bank, N.A., or any successor Master Servicer appointed as herein provided.

 

“Master Servicing Fee” : As to any Distribution Date and each related Mortgage Loan, an amount equal to the product of the applicable Master Servicing Fee Rate and the outstanding Principal Balance of such Mortgage Loan as of the first day of the related Due Period.

 

“Master Servicing Fee Rate ”: 0.0195% per annum.

 

“ Maximum Loan Rate ”: With respect to each Mortgage Loan, the percentage set forth in the related Mortgage Note as the maximum Loan Rate thereunder.

 

“ MERS ”: Mortgage Electronic Registration Systems, Inc., a corporation organized and existing under the laws of the State of Delaware, or any successor thereto.

 

“ MERS Mortgage Loan ”: Any Mortgage Loan registered with MERS on the MERS System.

 

“ MERS®   System ”: The system of recording transfers of mortgages electronically maintained by MERS.

 

“ MIN ”: The Mortgage Identification Number for any MERS Mortgage Loan.

 

“ MOM Loan ”: Any Mortgage Loan as to which MERS is acting as mortgagee, solely as nominee for the originator of such Mortgage Loan and its successors and assigns.

 

“ Monthly Payment ”: With respect to any Mortgage Loan, the scheduled monthly payment of principal and/or interest on such Mortgage Loan that is payable by the related Mortgagor from time to time under the related Mortgage Note, determined, for the purposes of this Agreement: (a) after giving effect to any reduction in the amount of interest collectible from the related Mortgagor pursuant to the Relief Act or similar state or local law; (b) without giving effect to any extension granted or agreed to by the related Servicer pursuant to the applicable provisions of the related Servicing Agreement; and (c) on the assumption that all other amounts, if any, due under such Mortgage Loan are paid when due.

 

“ Mortgage ”: The mortgage, deed of trust or other instrument creating a first lien on, or first priority security interest in, a Mortgaged Property securing a Mortgage Note.

 

“ Mortgage File ”: The mortgage documents listed in Section 2.01 hereof pertaining to a particular Mortgage Loan and any additional documents required to be added to the Mortgage File pursuant to this Agreement.

 

“ Mortgage Loan ”: Each mortgage loan (including Cooperative Loans) transferred and assigned to the Trustee pursuant to Section 2.01 or Section 2.03(d) hereof as from time to time held as a part of the Trust Fund, the Mortgage Loans so held being identified in the Mortgage Loan Schedule.

 

“ Mortgage Loan Purchase Agreement ”: The Mortgage Loan Purchase Agreement between the Seller and the Depositor, dated as of November 1, 2006, regarding the transfer of the Mortgage Loans by the Seller (including the Seller’s right and interest in the agreements listed on Exhibit M hereto) to or at the direction of the Depositor.

 

“ Mortgage Loan Schedule ”: As of any date, the list of Mortgage Loans included in the Trust Fund on such date, attached hereto as Schedule I. The Mortgage Loan Schedule shall be prepared by the Seller and shall set forth the following information with respect to each Mortgage Loan:

 

Information set forth in clauses (ii) and (iii) above regarding each Mortgagor and the related Mortgaged Property shall be confidential and the Trustee (or Master Servicer) shall not disclose such information except to the extent disclosure may be required by any law or regulatory or administrative authority; provided , however , that the Trustee may disclose on a confidential basis any such information to its agents, attorneys and any auditors in connection with the performance of its responsibilities hereunder.

 

The Mortgage Loan Schedule, as in effect from time to time, shall also set forth the following information with respect to the Mortgage Loans in the aggregate as of the Cut-Off Date: (1) the number of Mortgage Loans; (2) the current Principal Balance of the Mortgage Loans; (3) the weighted average Loan Rate of the Mortgage Loans; and (4) the weighted average remaining months to maturity of the Mortgage Loans. The Mortgage Loan Schedule shall be amended from time to time by the Seller in accordance with the provisions of this Agreement.

 

“ Mortgage Note ”: The original executed note or other evidence of indebtedness evidencing the indebtedness of a Mortgagor under a Mortgage Loan.

 

“ Mortgaged Property ”: Either of (x) the fee simple or leasehold interest in real property, together with improvements thereto including any exterior improvements to be completed within 120 days of disbursement of the related Mortgage Loan proceeds, or (y) in the case of a Cooperative Loan, the related Cooperative Shares and Proprietary Lease, securing the indebtedness of the Mortgagor under the related Mortgage Loan.

 

“ Mortgagor ”: The obligor on a Mortgage Note.

 

“ Net Interest Shortfall ”: With respect to any Distribution Date, the excess of the Interest Shortfall, if any, for such Distribution Date over the sum of (i) Interest Shortfalls paid by the Servicers under the related Servicing Agreements with respect to such Distribution Date and (ii) Compensating Interest Payments made with respect to such Distribution Date.

 

“ Net Liquidation Proceeds ”: With respect to any Liquidated Mortgage Loan or any other disposition of related Mortgaged Property (including REO Property) the related Liquidation Proceeds net of Advances, related Servicing Advances, the Master Servicing Fee, the related Servicing Fees and any other accrued and unpaid servicing fees received and retained in connection with the liquidation of such Mortgage Loan or Mortgaged Property.

 

“ Net Loan Rate ”: With respect to any Mortgage Loan (or the related REO Property), as of any date of determination, a per annum rate of interest equal to the then applicable Loan Rate for such Mortgage Loan minus the Expense Fee Rate and, commencing on the Distribution Date in December 2026 and on each Distribution Date thereafter until the Final Maturity Reserve Termination Date, the Final Maturity Reserve Rate.

 

“ Net Realized Losses ”: For any Class of Certificates and any Distribution Date, the excess of (i) the amount of Realized Losses previously allocated to that Class (ii) the sum of (a) the amount of any increases to the Class Principal Balance of that Class pursuant to Section 5.08 due to Recoveries and (b) with respect to the LIBOR Certificates, any payments received pursuant to Sections 5.01(a)(ii) and (iv) from the Yield Maintenance Account.

 

“ Net WAC ”: With respect to the Mortgage Loans and any Distribution Date, the weighted average of the Net Loan Rates of the Mortgage Loans as of the first day of the related Due Period (or, in the case of the first Distribution Date, as of the Cut-Off Date), weighted on the basis of their related Stated Principal Balances as of the first day of the related Due Period (or, in the case of the first Distribution Date, as of the Cut-Off Date).

 

“ Net WAC Cap ”: With respect to the LIBOR Certificates and any Distribution Date, the product of (x) the Net WAC for such Distribution Date and (y) a fraction, the numerator of which is 30 and the denominator of which is the actual number of days in the related Accrual Period.

 

“ Nonrecoverable ”: A determination by the Master Servicer or the related Servicer in respect of a delinquent Mortgage Loan that if it were to make an Advance or an advance of a delinquent Monthly Payment, respectively, in respect thereof, such amount would not be recoverable from any collections or other recoveries (including Liquidation Proceeds) on such Mortgage Loan.

 

“ Notional Certificate ”: Any Class X Certificate.

 

“ Officers’ Certificate ”: A certificate signed by the Chairman of the Board, the Vice Chairman of the Board, the President or a vice president (however denominated), or by the Treasurer, the Secretary, or one of the assistant treasurers or assistant secretaries of the Seller, the Master Servicer or the Depositor, as applicable.

 

“ One-Month LIBOR ”: The average of interbank offered rates for one month U.S. dollar deposits in the London market based on quotations of major banks.

 

“ Opinion of Counsel ”: A written opinion of counsel, who may, without limitation, be a salaried counsel for the Depositor or the Seller, acceptable to the Trustee or the Securities Administrator, as applicable, except that any opinion of counsel relating to (a) the qualification of any REMIC created hereunder as a REMIC or (b) compliance with the REMIC Provisions must be an opinion of Independent counsel.

 

“ Original Applicable Credit Support Percentage ”: With respect to each Class of Subordinate Certificates, the corresponding percentage set forth below opposite its Class designation:

 

 

“ Original Class Certificate Notional Balance ”: With respect to the Class X Certificates, the corresponding aggregate notional amount set forth opposite the Class designation of such Class in the Preliminary Statement.

 

“ Original Class Principal Balance ”: With respect to each Class of Certificates, other than the Notional Certificates, the corresponding aggregate amount set forth opposite the Class designation of such Class in the Preliminary Statement.

 

“ Original Subordinated Principal Balance ”: The aggregate of the Original Class Principal Balances of the Classes of Subordinate Certificates.

 

“ Originator ”: Each party listed as an “Originator” on Exhibit P hereto or any other originator contemplated by Item 1110 (§229.1110) of Regulation AB.

 

“ OTS ”: The Office of Thrift Supervision.

 

“ Outstanding Mortgage Loan ”: As of any Due Date, a Mortgage Loan with a Stated Principal Balance greater than zero, that was not the subject of a prepayment in full prior to such Due Date and that did not become a Liquidated Mortgage Loan prior to such Due Date.

 

“ Ownership Interest ”: As to any Certificate, any ownership or security interest in such Certificate, including any interest in such Certificate as the Holder thereof and any other interest therein, whether direct or indirect, legal or beneficial, as owner or as pledgee.

 

“ Pass-Through Rate ”: With respect to each Class of Certificates and any Distribution Date, the rate set forth below:

 

“ Paying Agent ”: Any paying agent appointed pursuant to Section 6.05 hereof. The initial Paying Agent shall the Securities Administrator.

 

“ PCAOB ”: The Public Company Accounting Oversight Board.

 

“ Percentage Interest ”: With respect to any Certificate other than the Class A-R or Class P Certificate, a fraction, expressed as a percentage, the numerator of which is the Initial Certificate Principal Balance or Initial Certificate Notional Balance, as applicable, represented by such Certificate and the denominator of which is the Original Class Certificate Principal Balance or Original Class Certificate Notional Balance, as applicable, of the related Class. With respect to the Class P Certificates, the percentage interest specified on the face thereof. With respect to the Class A-R Certificate, 100%.

 

“ Permitted Investments ”: Any one or more of the following obligations or securities acquired at a purchase price of not greater than par, regardless of whether issued or managed by the Depositor, the Trustee, the Master Servicer or any of their respective Affiliates or for which an Affiliate of the Trustee serves as an advisor:

 

provided , however , that no instrument described hereunder shall evidence either the right to receive (a) only interest with respect to the obligations underlying such instrument or (b) both principal and interest payments derived from obligations underlying such instrument and the interest and principal payments with respect to such instrument provide a yield to maturity at par greater than 120% of the yield to maturity at par of the underlying obligations.

 

“ Permitted Transferee ”: Any Transferee of the Residual Certificate other than a Disqualified Organization or a non-U.S. Person.

 

“ Person ”: Any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

 

“ Physical Certificates ”: The Class A-R and Class P Certificates.

 

“ Pool Balance ”: With respect to any Distribution Date, the aggregate of the Stated Principal Balances, as of the Close of Business on the first day of the related Due Period, of the Mortgage Loans that were Outstanding Mortgage Loans on that day.

 

“ Premium Proceeds ”: The amount by which the Termination Price paid in connection with the termination pursuant to Section 10.01 hereof exceeds the sum of (i) accrued and unpaid interest and unpaid principal on the Certificates and any Basis Risk Shortfalls remaining unpaid, (ii) any unreimbursed Advances and Servicing Advances and any unpaid Servicing Fees and (iii) all amounts, if any, then due and owing to the Master Servicer, the Securities Administrator, Trustee, the Custodian and the Credit Risk Manager under this Agreement.

 

“ Prepayment Period ”: With respect to any Distribution Date the calendar month preceding the month in which such Distribution Date occurs.

 

“ Prepayment Premium Amount ”: With respect to any Mortgage Loan and each Distribution Date, all premiums or charges, if any, paid by Mortgagors under the related Mortgage Notes as a result of full or partial Principal Prepayments collected by the applicable Servicer during the immediately preceding Prepayment Period and deposited into the Distribution Account for distribution to the Holders of the Class P Certificates.

 

“ Primary Insurance Policy ”: Mortgage guaranty insurance, if any, on an individual Mortgage Loan, as evidenced by a policy or certificate.

 

“ Principal Balance ”: With respect to any Mortgage Loan, other than a Liquidated Mortgage Loan, and any day, the related Cut-Off Date Principal Balance, minus all collections credited against the Principal Balance of such Mortgage Loan after the Cut-Off Date. For purposes of this definition, a Liquidated Mortgage Loan shall be deemed to have a Principal Balance equal to the Principal Balance of the related Mortgage Loan as of the final recovery of related Liquidation Proceeds and a Principal Balance of zero thereafter. With respect to any REO Property and any day, the Principal Balance of the related Mortgage Loan immediately prior to such Mortgage Loan becoming REO Property.

 

“Principal Distribution Amount ”: With respect to any Distribution Date, the sum of (a) each scheduled payment of principal collected or advanced on the related Mortgage Loans (before taking into account any Deficient Valuation or Debt Service Reductions) by the related Servicer or the Master Servicer in respect of the related Due Period, (b) that portion of the Purchase Price or Repurchase Price, as applicable, representing principal of any repurchased Mortgage Loan, deposited to the Distribution Account during the related Prepayment Period, (c) the principal portion of any related Substitution Adjustments deposited in the Distribution Account during the related Prepayment Period, (d) the principal portion of all Insurance Proceeds received during the related Prepayment Period with respect to Mortgage Loans that are not yet Liquidated Mortgage Loans, (e) the principal portion of all Net Liquidation Proceeds received during the related Prepayment Period with respect to Liquidated Mortgage Loans other than Recoveries, (f) all Principal Prepayments in part or in full on Mortgage Loans applied by the Servicers or the Master Servicer during the related Prepayment Period, (g) all Recoveries received during the Prepayment Period and (h) on the Distribution Date on which the Trust is to be terminated pursuant to Section 10.01 hereof, that portion of the Termination Price in respect of principal.

 

“ Principal Prepayment ”: Any payment of principal made by the Mortgagor on a Mortgage Loan that is received in advance of its scheduled Due Date and that is not accompanied by an amount of interest representing the full amount of scheduled interest due on any Due Date in any month or months subsequent to the month of prepayment.

 

“ Private Certificates ”: The Class B-4, Class B-5, Class B-6 and Class P Certificates.

 

“ Private Placement Memorandum ”: The Private Placement Memorandum dated December 11, 2006 relating to the initial sale of the Class B-4, Class B-5 and Class B-6 Certificates.

 

“ Pro Rata Share ”: With respect to any Distribution Date and any Class of Subordinate Certificates, the portion of the Subordinate Principal Distribution Amount allocable to such Class, equal to the product of the (a) Subordinate Principal Distribution Amount on such date and (b) a fraction, the numerator of which is the related Class Principal Balance of that Class and the denominator of which is the aggregate of the Class Principal Balances of all the Classes of Subordinate Certificates.

 

“ Proprietary Lease ”: With respect to any Cooperative Unit, a lease or occupancy agreement between a Cooperative Corporation and a holder of related Cooperative Shares.

 

“ Prospectus ”: The Prospectus Supplement, together with the accompanying prospectus dated August 10, 2006, relating to the Senior Certificates and the Class B-1, Class B-2 and Class B-3 Certificates.

 

“ Prospectus Supplement ”: The Prospectus Supplement dated December 11, 2006 relating to the offering of the Senior Certificates and the Class B-1, Class B-2 and Class B-3 Certificates.

 

“ Purchase Agreement ”: Each mortgage loan purchase agreement and/or assignment agreement relating to the acquisition by the Seller of the Mortgage Loans and between the related Originator and the Seller, listed on Exhibit P hereto.

 

“ Purchase Price ”: With respect to any Mortgage Loan or REO Property to be purchased pursuant to or as contemplated by Section 2.03 hereof, and as confirmed by an Officers’ Certificate from the Seller to the Trustee and the Securities Administrator, an amount equal to the sum of (i) 100% of the Principal Balance thereof as of the date of purchase (or such other price as is provided in Section 10.01), plus (ii) in the case of (x) a Mortgage Loan, accrued interest on such Principal Balance at the applicable Loan Rate (or if the related Servicer is repurchasing such Mortgage Loan, the Loan Rate minus the applicable Servicing Fee Rate) from the Due Date as to which interest was last covered by a payment by the Mortgagor through the end of the calendar month in which the purchase is to be effected, and (y) an REO Property, the sum of (1) accrued interest on such Principal Balance at the applicable Loan Rate (or if the related Servicer is repurchasing such Mortgage Loan, the Loan Rate minus the applicable Servicing Fee Rate) from the Due Date as to which interest was last covered by a payment by the Mortgagor plus (2) REO Imputed Interest for such REO Property for each calendar month commencing with the calendar month in which such REO Property was acquired and ending with the calendar month in which such purchase is to be effected, net of the total of all net rental income, Insurance Proceeds and Liquidation Proceeds that as of the date of purchase had been distributed as or to cover REO Imputed Interest, plus (iii) any unreimbursed Servicing Advances and any unpaid Expense Fees allocable to such Mortgage Loan or REO Property, plus (iv) in the case of a Mortgage Loan required to be purchased pursuant to Section 2.03 hereof, expenses reasonably incurred or to be incurred by the Trustee in respect of the breach or defect giving rise to the purchase obligation and plus (v) any costs and damages incurred by the Trust Fund in connection with any violation by such Mortgage Loan of any predatory- or abusive-lending laws.

 

“ Qualified Institutional Buyer ”: As defined in Rule 144A of the Securities Act.

 

“ Qualified Insurer ”: A mortgage guaranty insurance company duly qualified as such under the laws of the state of its principal place of business and each state having jurisdiction over such insurer in connection with the insurance policy issued by such insurer, duly authorized and licensed in such states to transact a mortgage guaranty insurance business in such states and to write the insurance provided by the insurance policy issued by it, so long as the claims paying ability of which is acceptable to each Rating Agency for pass-through certificates having the same ratings on the Certificates rated by each Rating Agency as of the Closing Date. Any replacement insurer with respect to a Mortgage Loan must have at least as high a claims paying ability rating as the insurer it replaces had on the Closing Date.

 

“ Qualified Substitute Mortgage Loan ”: A mortgage loan substituted for a Deleted Mortgage Loan pursuant to the terms of this Agreement which must, on the date of such substitution, (i) have an outstanding principal balance, after application of all scheduled payments of principal and interest due during or prior to the month of substitution, not in excess of, and not more than 5% less than, the Principal Balance of the Deleted Mortgage Loan as of the Due Date in the calendar month during which the substitution occurs, (ii) have a maximum loan rate not less than the Maximum Loan Rate of the Deleted Mortgage Loan, (iii)  have a gross margin equal to or greater than the Gross Margin of the Deleted Mortgage Loan, (iv) have the same Index as the Deleted Mortgage Loan, (v) have its next adjustment date not more than two months after the next Adjustment Date of the Deleted Mortgage Loan, (vi) have a remaining term to maturity not greater than (and not more than one year less than) that of the Deleted Mortgage Loan, (vii) be current as of the date of substitution, (viii) have a Loan-to-Value Ratio as of the date of substitution equal to or lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as of such date, (ix) have been underwritten or re-underwritten in accordance with the same or substantially similar underwriting criteria and guidelines as the Deleted Mortgage Loan, (x) is of the same or better credit quality as the Deleted Mortgage Loan and (xi) conform to each representation and warranty set forth in Section 2.04 hereof applicable to the Deleted Mortgage Loan. In the event that one or more mortgage loans are substituted for one or more Deleted Mortgage Loans, the amounts described in clause (i) hereof shall be determined on the basis of aggregate principal balances, the terms described in clause (vi) hereof shall be determined on the basis of weighted average remaining term to maturity and the Loan-to-Value Ratio described in clause (viii) hereof shall be satisfied as to each such mortgage loan and, except to the extent otherwise provided in this sentence, the representations and warranties described in clause (x) hereof must be satisfied as to each Qualified Substitute Mortgage Loan or in the aggregate, as the case may be.

 

“ Rating Agency ”: Each of Fitch and S&P. If any rating agency or its successor shall no longer be in existence, “Rating Agency” shall include such nationally recognized statistical rating agency or agencies, or other comparable Person or Persons, as shall have been designated by the Depositor, notice of which designation shall be given to the Trustee and the Master Servicer.

 

“ Realized Loss ”: With respect to any Liquidated Mortgage Loan, the amount of loss realized equal to the portion of the Principal Balance remaining unpaid after application of all Net Liquidation Proceeds in respect of such Liquidated Mortgage Loan.

 

“ Recognition Agreement ”: With respect to any Cooperative Loan, an agreement between the related Cooperative Corporation and the originator of such Mortgage Loan to establish the rights of such originator in the related Cooperative Property.

 

“ Record Date ”: With respect to each Distribution Date and the LIBOR Certificates, the Business Day preceding the applicable Distribution Date so long as such Certificates remain Book-Entry Certificates and otherwise the Record Date shall be same as the other Classes of Certificates. For each other Class of Certificates, the last Business Day of the calendar month preceding the month in which such Distribution Date occurs.

 

“ Recovery ”: With respect to any Distribution Date and a Mortgage Loan that became a Liquidated Mortgage Loan in the month preceding the month prior to that Distribution Date and with respect to which the related Realized Loss was allocated to one or more Classes of Certificates, an amount received in respect of such Liquidated Mortgage Loan during the prior calendar month, net of any reimbursable expenses.

 

“ Reference Bank ”: A leading bank engaged in transactions in Eurodollar deposits in the international Eurocurrency market, which shall not control, be controlled by, or be under common control with, the Securities Administrator and shall have an established place of business in London. Until all of the LIBOR Certificates are paid in full, the Securities Administrator will at all times retain at least four Reference Banks for the purpose of determining LIBOR with respect to each LIBOR Determination Date. The Securities Administrator initially shall designate the Reference Banks (after consultation with the Depositor). If any such Reference Bank should be unwilling or unable to act as such or if the Securities Administrator should terminate its appointment as Reference Bank, the Securities Administrator shall promptly appoint or cause to be appointed another Reference Bank (after consultation with the Depositor). The Securities Administrator shall have no liability or responsibility to any Person for (i) the selection of any Reference Bank for purposes of determining LIBOR or (ii) any inability to retain at least four Reference Banks which is caused by circumstances beyond its reasonable control.

 

“ Refinancing Mortgage Loan ”: Any Mortgage Loan originated in connection with the refinancing of an existing mortgage loan.

 

“ Regular Certificate ”: Any Class A, Class X, Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6 Certificate.

 

“ Regulation AB ”: Subpart 229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R. §§229.1100-229.1123, as such may be amended from time to time, and subject to such clarifications and interpretations as have been provided by the Commission in the adopting release (Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by the Commission or its staff from time to time.

 

“ Regulation S ”: Regulation S promulgated under the Securities Act or any successor provision thereto, in each case as the same may be amended from time to time; and all references to any rule, section or subsection of, or definition or term contained in, Regulation S means such rule, section, subsection, definition or term, as the case may be, or any successor thereto, in each case as the same may be amended from time to time.

 

“ Regulation S Global Security ”: The meaning specified in Section 6.01.

 

“ Relevant Servicing Criteria ”: The Servicing Criteria applicable to each party, as set forth on Exhibit Q attached hereto. Multiple parties can have responsibility for the same Relevant Servicing Criteria. With respect to a Servicing Function Participant engaged by the Master Servicer, the Securities Administrator, the Credit Risk Manager, the Custodian or any Servicer, the term “Relevant Servicing Criteria” may refer to a portion of the Relevant Servicing Criteria applicable to such parties.

 

“ Relief Act ”: The Servicemembers Civil Relief Act, as amended, or any similar state or local law.

 

“ Relief Act Reductions ”: With respect to any Distribution Date and any Mortgage Loan as to which there has been a reduction in the amount of interest collectible thereon for the most recently ended Due Period as a result of the application of the Relief Act, the amount, if any, by which (i) interest collectible on that Mortgage Loan during such Due Period is less than (ii) one month’s interest on the Stated Principal Balance of such Mortgage Loan at the Loan Rate for such Mortgage Loan before giving effect to the application of the Relief Act.

 

“ REMIC ”: A “real estate mortgage investment conduit” within the meaning of Section 860D of the Code.

 

“ REMIC Opinion ”: An Independent Opinion of Counsel, to the effect that the proposed action described therein would not cause an Adverse REMIC Event.

 

“ REMIC Provisions ”: Provisions of the federal income tax law relating to real estate mortgage investment conduits which appear at Section 860A through 860G of Subchapter M of Chapter 1 of the Code, and related provisions, and regulations and rulings promulgated thereunder, as the foregoing may be in effect from time to time.

 

“ Remittance Report ”: The Master Servicer’s Remittance Report to the Securities Administrator providing information with respect to each Mortgage Loan which is provided no later than the second Business Day following each Determination Date and which shall contain such information as may be agreed upon by the Master Servicer and the Securities Administrator and which shall be sufficient to enable the Securities Administrator to prepare the related Distribution Date Statement.

 

“ Rents from Real Property ”: With respect to any REO Property, gross income of the character described in Section 856(d) of the Code.

 

“ REO Account ”: The account or accounts maintained by the Servicers in respect of an REO Property pursuant to the Servicing Agreements.

 

“ REO Disposition ”: The sale or other disposition of an REO Property on behalf of the Trust Fund.

 

“ REO Imputed Interest ”: With respect to any REO Property, for any calendar month during which such REO Property was at any time part of the Trust Fund, one month’s interest at the applicable Net Loan Rate for such REO Property on the Principal Balance of such REO Property (or, in the case of the first such calendar month, of the related Mortgage Loan if appropriate) as of the Close of Business on the Due Date in such calendar month.

 

“ REO Principal Amortization ”: With respect to any REO Property, for any calendar month, the excess, if any, of (a) the aggregate of all amounts received in respect of such REO Property during such calendar month, whether in the form of rental income, sale proceeds (including, without limitation, that portion of the Termination Price paid in connection with a purchase of all of the Mortgage Loans and REO Properties pursuant to Section 10.01 hereof that is allocable to such REO Property) or otherwise, net of any portion of such amounts (i) payable pursuant to the applicable provisions of the Servicing Agreements in respect of the proper operation, management and maintenance of such REO Property or (ii) payable or reimbursable to the Servicers pursuant to the applicable provisions of the Servicing Agreements for unpaid Master Servicing Fees and Servicing Fees in respect of the related Mortgage Loan and unreimbursed Servicing Advances and Advances in respect of such REO Property or the related Mortgage Loan, over (b) the REO Imputed Interest in respect of such REO Property for such calendar month.

 

“ REO Property ”: A Mortgaged Property acquired by the Servicers on behalf of the Trust Fund through foreclosure or deed-in-lieu of foreclosure in accordance with the applicable provisions of the Servicing Agreements.

 

“ Repurchase Price ”: As defined in the related Purchase Agreement.

 

“ Reportable Event ”: As defined in Section 3.19(c).

 

“ Request for Release” : A release signed by a Servicing Officer, in the form of Exhibit F attached hereto.

 

“ Required Reserve Fund Deposit ”: With respect to the Class X Certificates and any Distribution Date, an amount equal to the lesser of (i) the Current Interest for the Class X Certificates for such Distribution Date and (ii) the amount required to bring the balance on deposit in the Basis Risk Reserve Fund up to an amount equal to the Basis Risk Shortfalls for such Distribution Date with respect to the LIBOR Certificates (after giving effect to distributions of payments made pursuant to the Yield Maintenance Agreement).

 

“ Residential Dwelling ”: Any one of the following: (i) a detached one-family dwelling, (ii) a detached two- to four-family dwelling, (iii) a one-family dwelling unit in a condominium project, (iv) a manufactured home, (v) a cooperative unit or (vi) a detached one-family dwelling in a planned unit development, none of which is a mobile home.

 

“ Residual Certificate ”: The Class A-R Certificate.

 

“ Responsible Officer ”: When used with respect to the Trustee or any director, the President, any vice president, any assistant vice president, any associate assigned to the Corporate Trust Office (or similar group) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and, with respect to a particular matter, to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.

 

“ Restricted Classes ”: As defined in Section 5.01(d).

 

“ Restricted Global Security ”: As defined in Section 6.01.

 

“ S&P ”: Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto.

 

“ Sarbanes Oxley Act ”: The Sarbanes-Oxley Act of 2002 and the rules and regulations of the Commission promulgated thereunder (including any interpretations thereof by the Commission’s staff).

 

“ Sarbanes-Oxley Certification ”: A written certification signed by an officer of the Master Servicer that complies with (i) the Sarbanes-Oxley Act of 2002, as amended from time to time, and (ii) Exchange Act Rules 13a-14(d) and 15d-14(d), as in effect from time to time; provided that if, after the Closing Date (a) the Sarbanes-Oxley Act of 2002 is amended, (b) the Rules referred to in clause (ii) are modified or superseded by any subsequent statement, rule or regulation of the Commission or any statement of a division thereof, or (c) any future releases, rules and regulations are published by the Securities and Exchange Commission from time to time pursuant to the 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 Master Servicer, 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 Master Servicer, the Depositor and the Seller following a negotiation in good faith to determine how to comply with any such new requirements.

 

“ Securities Act ”: The Securities Act of 1933, as amended, and the rules and regulations thereunder.

 

“ Securities Administrator ”: Wells Fargo Bank, N.A., or its successor in interest, or any successor securities administrator appointed as herein provided.

 

“ Security Agreement ”: With respect to any Cooperative Loan, the agreement between the owner of the related Cooperative Shares and the originator of the related Mortgage Note that defines the terms of the security interest in such Cooperative Shares and the related Proprietary Lease.

 

“ Seller ”: GCFP, in its capacity as seller under this Agreement.

 

“ Senior Certificate ”: Any one of the Class A, Class X or Class A-R Certificates.

 

“ Senior Certificateholder ”: Any Holder of a Senior Certificate.

 

“ Senior Credit Support Depletion Date ”: The date on which the Class Principal Balance of each Class of Subordinate Certificates has been reduced to zero.

 

“ Senior Percentage ”: With respect to any Distribution Date, the percentage equivalent of a fraction (which shall not be greater than 100%) the numerator of which is the aggregate of the Class Principal Balances of the Classes of Senior Certificates immediately prior to such Distribution Date and the denominator of which is the Pool Balance for that Distribution Date.

 

“ Senior Prepayment Percentage ”: With respect to any Distribution Date before the Distribution Date in December 2016, 100%. Except as provided herein, the Senior Prepayment Percentage for any Distribution Date occurring on or after the tenth anniversary of the first Distribution Date will be as follows: (i) from December 2016 through November 2017, the Senior Percentage plus 70% of the Subordinate Percentage for that Distribution Date; (ii) from December 2017   through November 2018, the Senior Percentage plus 60% of the Subordinate Percentage for that Distribution Date; (iii) from December 2018   through November 2019, the Senior Percentage plus 40% of the Subordinate Percentage for that Distribution Date; (iv) from December 2019   through November 2020, the Senior Percentage plus 20% of the Subordinate Percentage for that Distribution Date; and (v) from and after December 2020, the Senior Percentage for that Distribution Date; provided, however, that there shall be no reduction in the Senior Prepayment Percentage on a Distribution Date unless the Step Down Conditions are satisfied with respect to such Distribution Date; and provided, further , that if on any Distribution Date occurring on or after the Distribution Date in December 2020, the Senior Percentage exceeds the initial Senior Percentage, the Senior Prepayment Percentage for that Distribution Date will again equal 100%.

 

Notwithstanding the above, (i) if on any Distribution Date prior to December 2009 the Two Times Test is satisfied, the Senior Prepayment Percentage will equal the Senior Percentage for such Distribution Date plus 50% of the Subordinate Percentage for such Distribution Date and (ii)   if on any Distribution Date in or after December 2009 the Two Times Test is satisfied, the Senior Prepayment Percentage will equal the Senior Percentage for such Distribution Date.

 

“ Senior Principal Distribution Amount ”: With respect to any Distribution Date, the sum of:

 

“ Servicer ”: Each of Downey, First Republic and GMAC as primary servicers of the Mortgage Loans as set forth and as individually defined in the Mortgage Loan Schedule hereto and any successors thereto.

 

“ Servicer Remittance Date ”: With respect to each Mortgage Loan, the 18 ^th day of each month, or if such 18 ^th day is not a Business Day or if provided in the related Servicing Agreement, the preceding Business Day.

 

“ Servicing Account ”: Any account established and maintained for the benefit of the Master Servicer or the Trust Fund by a Servicer or with respect to the related Mortgage Loans and any REO Property, pursuant to the terms of the respective Servicing Agreement.

 

“ Servicing Advances ”: With respect to the Master Servicer (including the Trustee as successor Master Servicer) and the Servicers, all customary, reasonable and necessary “out of pocket” costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Master Servicer (including the Trustee in its capacity as successor Master Servicer) or the Servicers in the performance of its servicing obligations hereunder, including, but not limited to, the cost of (i) the preservation, restoration, inspection and protection of the Mortgaged Property, (ii) any enforcement or judicial proceedings, including foreclosures, (iii) the management and liquidation of the REO Property and (iv) any other expenses permitted to be reimbursed as Servicing Advances under the Servicing Agreements.

 

“ Servicing Agreement”: Each reconstituted servicing agreement set forth on Exhibit M hereto and relating to a Servicer and the servicing of the related Mortgage Loans by such Servicer, as the same may be amended from time to time.

 

“ Servicing Criteria ”: The criteria set forth in paragraph (d) of Item 1122 of Regulation AB, as such may be amended from time to time.

 

“ Servicing Fee ”: With respect to each Servicer and each Mortgage Loan serviced by such Servicer and for any calendar month, the fee payable to the Servicer determined pursuant to the applicable Servicing Agreement.

 

“ Servicing Fee Rate ”: With respect to each Mortgage Loan, the per annum rate of 0.375%.

 

“ Servicing Function Participant ”: Any Subservicer or Subcontractor of a Servicer, the Master Servicer, the Custodian or the Securities Administrator, respectively.

 

“ Servicing Officer”: Any officer of the Master Servicer or the Servicers involved in, or responsible for, the administration and servicing (or master servicing) of Mortgage Loans, whose name and specimen signature appear on a list of servicing officers furnished by the Master Servicer to the Trustee, the Custodian and the Depositor on the Closing Date, as such list may from time to time be amended.

 

“ Six-Month LIBOR ”: The average of interbank offered rates for six-month U.S. dollar deposits in the London market based on quotations of major banks.

 

“ Six-Month LIBOR Indexed ”: Indicates a Mortgage Loan that has an adjustable Loan Rate calculated on the basis of the Six-Month LIBOR index.

 

“ Sponsor ”: Greenwich Capital Financial Products, Inc., in its capacity as sponsor under this Agreement.

 

“ Startup Day ”: As defined in Section 9.01(b) hereof.

 

“ Stated Principal Balance ”: With respect to any Mortgage Loan: (a) as of the Distribution Date in December 2006, the Cut-Off Date Principal Balance of such Mortgage Loan,  (b) thereafter as of any date of determination up to and including the Distribution Date on which the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan would be distributed, the Cut-Off Date Principal Balance of such Mortgage Loan minus , in the case of each Mortgage Loan, the sum of (i) the principal portion of each Monthly Payment due on a Due Date subsequent to the Cut-Off Date, whether or not received, (ii) all Principal Prepayments received after the Cut-Off Date, to the extent distributed pursuant to Section 5.01 before such date of determination and (iii) all Liquidation Proceeds and Insurance Proceeds applied by the Servicers as recoveries of principal in accordance with the applicable provisions of the Servicing Agreement, to the extent distributed pursuant to Section 5.01 before such date of determination; and (c) as of any date of determination subsequent to the Distribution Date on which the proceeds, if any, of a Liquidation Event with respect to such Mortgage Loan would be distributed, zero. With respect to any REO Property: (x) as of any date of determination up to and including the Distribution Date on which the proceeds, if any, of a Liquidation Event with respect to such REO Property would be distributed, an amount (not less than zero) equal to the Stated Principal Balance of the related Mortgage Loan as of the date on which such REO Property was acquired on behalf of the Trust Fund, minus the aggregate amount of REO Principal Amortization in respect of such REO Property for all previously ended calendar months, to the extent distributed pursuant to Section 5.01 before such date of determination; and (y) as of any date of determination subsequent to the Distribution Date on which the proceeds, if any, of a Liquidation Event with respect to such REO Property would be distributed, zero.

 

“ Step Down Conditions ”: With respect to any Distribution Date on which any decrease in any Senior Prepayment Percentage may apply, (i) the outstanding Principal Balance of all Mortgage Loans 60 days or more Delinquent (including related Mortgage Loans in REO and foreclosure) (averaged over the preceding six month period), as a percentage of the aggregate of the Class Principal Balances of the Classes of Subordinate Certificates on such Distribution Date, does not equal or exceed 50% and (ii) cumulative Realized Losses with respect to all of the Mortgage Loans do not exceed:

 

“ Strike Rate ”: With respect to any Distribution Date and the Yield Maintenance Agreement, the strike rate for such date set forth on Exhibit I of the Yield Maintenance Agreement.

 

“ Subcontractor ”: Any vendor, subcontractor or other Person that is not responsible for the overall servicing of Mortgage Loans but performs one or more discrete functions identified in Item 1122(d) of Regulation AB with respect to Mortgage Loans under the direction or authority of any Servicer (or a Subservicer of any Servicer), the Master Servicer, the Custodian, the Credit Risk Manager, the Trustee or the Securities Administrator.

 

“ Subordinate Certificate ”: Any one of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5 or Class B-6 Certificates.

 

“ Subordinate Percentage ”: With respect to any Distribution Date, the difference between 100% and the Senior Percentage for such Distribution Date.

 

“ Subordinate Prepayment Percentage ”: With respect to any Distribution Date, the difference between 100% and the Senior Prepayment Percentage for that Distribution Date.

 

“ Subordinate Principal Distribution Amount ”: With respect to any Distribution Date, an amount equal to the sum of:

 

“ Subservicer ”: Any person that services Mortgage Loans on behalf of a Servicer, the Master Servicer, the Securities Administrator or the Custodian, and is responsible for the performance (whether directly or through sub-servicers or Subcontractors) of servicing functions required to be performed under this Agreement, any related Servicing Agreement or any sub-servicing agreement that are identified in Item 1122(d) of Regulation AB.

 

“ Substitution Adjustment ”: As defined in Section 2.03(f) hereof.

 

“ Tax Returns ”: The federal income tax return on Internal Revenue Service Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax Return, including Schedule Q thereto, Quarterly Notice to Residual Interest Holders of the REMIC Taxable Income or Net Loss Allocation, or any successor forms, to be filed on behalf of each of the REMICs created hereunder under the REMIC Provisions, together with any and all other information reports or returns that may be required to be furnished to the Certificateholders or filed with the Internal Revenue Service or any other governmental taxing authority under any applicable provisions of federal, state or local tax laws.

 

“ Telerate Page 3750 ”: The display currently so designated as “Page 3750” on the Bridge Telerate Service (or such other page selected by the Securities Administrator as may replace Page 3750 on that service for the purpose of displaying daily comparable rates on prices).

 

“ 10-K Filing Deadline ”: As defined in Section 3.19(b).

 

“ Termination Price ”: As defined in Section 10.01(a) hereof.

 

“ Terminator ”: As defined in Section 10.01(a) hereof.

 

“ Transaction Addendum Harborview 2006-13” : The transaction addendum dated as of December 13, 2006, by and between Greenwich Capital Markets, Inc. and the Credit Risk Manager, and acknowledged by the Trustee, relating to the transaction contemplated by this Agreement.

 

“ Transfer ”: Any direct or indirect transfer or sale of any Ownership Interest in the Residual Certificate.

 

“ Transfer Affidavit ”: As defined in Section 6.02(e)(ii) hereof.

 

“ Transferee ”: Any Person who is acquiring by Transfer any Ownership Interest in a Certificate.

 

“ Trust ”: HarborView Mortgage Loan Trust 2006-13, the trust created hereunder.

 

“ Trust Fund ”: The segregated pool of assets subject hereto, constituting the primary trust created hereby and to be administered hereunder, such Trust Fund consisting of: (i) such Mortgage Loans as from time to time are subject to this Agreement, together with the Mortgage Files relating thereto, and together with all collections thereon and proceeds thereof, (ii) any REO Property, together with all collections thereon and proceeds thereof, (iii) the Trustee’s rights with respect to the Mortgage Loans under all insurance policies required to be maintained pursuant to this Agreement and any proceeds thereof, (iv) the Depositor’s rights under the Mortgage Loan Purchase Agreement (including any security interest created thereby); (v) the Distribution Account (subject to the last sentence of this definition), any REO Account and such assets that are deposited therein from time to time and any investments thereof, together with any and all income, proceeds and payments with respect thereto; (vi) all right, title and interest of the Seller in and to each of the Servicing Agreements; (vii) the Basis Risk Reserve Fund, the Final Maturity Reserve Fund, the Yield Maintenance Account and the Collateral Account; (viii) the rights of the Trust Fund under the Yield Maintenance Agreements; and (ix) all proceeds of the foregoing. Notwithstanding the foregoing, however, the Trust Fund specifically excludes (1) all payments and other collections of interest and principal due on the Mortgage Loans on or before the Cut-Off Date and principal received before the Cut-Off Date (except any principal collected as part of a payment due after the Cut-Off Date) and (2) all income and gain realized from Permitted Investments of funds on deposit in the Distribution Account.

 

“ Trustee ”: Deutsche Bank National Trust Company, not in its individual capacity but solely as trustee, a national banking association, its successors or assigns, or any successor trustee appointed as herein provided.

 

“ Trustee Fee ”: The annual on-going fee as agreed to by and payable by the Master Servicer on behalf of the Trust Fund to the Trustee from the Master Servicer Fee or other funds of the Master Servicer.

 

“ Two Times Test ”: As to any Distribution Date, (i) the Aggregate Subordinate Percentage is at least two times the Aggregate Subordinate Percentage as of the Closing Date; (ii) the aggregate of the Principal Balances of all Mortgage Loans Delinquent 60 days or more (including Mortgage Loans in REO and foreclosure) (averaged over the preceding six-month period), as a percentage of the aggregate of the Class Principal Balances of the Subordinate Certificates, does not equal or exceed 50%; and (iii) on or after the Distribution Date in December 2009, cumulative Realized Losses do not exceed 30% of the Original Subordinated Principal Balance or prior to the Distribution Date in December 2009, cumulative Realized Losses do not exceed 20% of the Original Subordinated Principal Balance.

 

“ Underwriter’s Exemption ”: Prohibited Transaction Exemption 90-59 (Exemption Application No. D-8374), as amended by PTE 97-34 (Exemption Application No. D-10245 and D-10246) and by PTE 2000-58 (Exemption Application No. D-10829) and PTE 2002-41 (Exemption Application No. D-11077), as amended (or any successor thereto), or any substantially similar administrative exemption granted by the U.S. Department of Labor.

 

“ Uninsured Cause ”: Any cause of damage to a Mortgaged Property such that the complete restoration of such property is not fully reimbursable by the hazard insurance policies required to be maintained on such Mortgaged Property.

 

“ United States Person ” or “ U.S. Person ”: The term shall have the meaning set forth in Section 7701(a)(30) of the Code or successor provisions.

 

“ Upper Tier REMIC ”: As described in the Preliminary Statement.

 

“ Value ”: With respect to any Mortgage Loan and the related Mortgaged Property, the lesser of:

 

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. 98% of the voting rights shall be allocated among the Classes of Regular Certificates (other than the Class A-R, Class P and Class X Certificates), pro rata , based on a fraction, expressed as a percentage, the numerator of which is the Class Principal Balance of such Class and the denominator of which is the aggregate of the Class Principal Balances then outstanding; 1% of the voting rights shall be allocated to the Holders of the Class X Certificates and 1% of the voting rights shall be allocated to the Holder of the Class A-R Certificate; provided, however , that when none of the Regular Certificates is outstanding, 100% of the voting rights shall be allocated to the Holder of the Class A-R Certificate. The voting rights allocated to a Class of Certificates shall be allocated among all Holders of such Class, pro rata , based on a fraction the numerator of which is the Certificate Principal Balance or Certificate Notional Balance, as applicable, of each Certificate of such Class and the denominator of which is the Class Principal Balance or Class Notional Balance, as applicable, of such Class; provided, further , that any Certificate registered in the name of the Master Servicer, the Securities Administrator or the Trustee or any of their respective affiliates shall not be included in the calculation of Voting Rights. The Class P Certificates shall have no voting rights.

 

“ Writedown Amount ”: The reduction described in Section 5.03(c).

 

“ Yield Maintenance Account ”: The account established and maintained by the Securities Administrator pursuant to Section 4.04, which shall be entitled “Yield Maintenance Account, Wells Fargo Bank, N.A., as Securities Administrator for Deutsche Bank National Trust Company, as Trustee, in trust for the registered Holders of HarborView Mortgage Loan Trust, Mortgage Loan Pass-Through Certificates, Series 2006-13” and which must be an Eligible Account.

 

“ Yield Maintenance Agreement ”: The interest rate cap agreement by and between the Yield Maintenance Provider and the Securities Administrator, on behalf of the Trust Fund, including the ISDA Master Agreement between the Yield Maintenance Provider and the Securities Administrator, the schedule thereto and the related confirmation (Ref. No. FXHMLT613A), dated as of December 13, 2006, a copy of which is attached as Exhibit X hereto.

 

“ Yield Maintenance Distributable Amount ”: With respect to each Distribution Date and the LIBOR Certificates, an amount equal to the product of (i) the excess, if any, of (x) LIBOR, subject to the applicable strike rate cap set forth on Schedule I to the Yield Maintenance Agreement over (y) the applicable Strike Rate, (ii) the related Yield Maintenance Notional Balance and (iii) a fraction, the numerator of which is the actual number days in the related interest Accrual Period and the denominator of which is 360.

 

“ Yield Maintenance Notional Balance ”: For any Distribution Date, the lesser of (i) the amount set forth on Schedule I to the Yield Maintenance Agreement and (ii) the aggregate Class Principal Balance of the LIBOR Certificates.

 

“ Yield Maintenance Payments ”: The payment remitted to the Securities Administrator by the Yield Maintenance Provider under any Yield Maintenance Agreement.

 

“ Yield Maintenance Provider ”: Bear Stearns Financial Products Inc., its successors and assigns or any successor Yield Maintenance Provider.

 

 

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.

 

The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to (i) each Mortgage Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest due thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) all the Depositor’s right, title and interest in and to the Distribution Account and all amounts from time to time credited to and the proceeds of the Distribution Account; (iii) any real property that secured each such Mortgage Loan and that has been acquired by foreclosure or deed in lieu of foreclosure; (iv) the Depositor’s interest in any insurance policies in respect of the Mortgage Loans; (v) all proceeds of any of the foregoing; and (vi) all other assets included or to be included in the Trust Fund. Such assignment includes all interest and principal due to the Depositor or the Master Servicer after the Cut-Off Date with respect to the Mortgage Loans. In exchange for such transfer and assignment, the Depositor shall receive the Certificates.

 

On or prior to the Closing Date, the Depositor shall cause the Yield Maintenance Provider to enter into the Yield Maintenance Agreement with the Securities Administrator. The Depositor hereby directs the Securities Administrator to execute, not in its individual capacity, but solely as Securities Administrator on behalf of the Trust Fund, and deliver the Yield Maintenance Agreements.

 

It is agreed and understood by the Depositor, the Seller and the Trustee that it is not intended that any Mortgage Loan be included in the Trust Fund that is a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act, effective as of November 27, 2003, or The Home Loan Protection Act of New Mexico, effective as of January 1, 2004, or that is a “High Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act, effective as of November 7, 2004, or that is an “Indiana High Cost Home Mortgage Loan” as defined in the Indiana High Cost Home Loan Act, effective as of January 1, 2005.

 

Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Trustee all of its rights and interest under the Mortgage Loan Purchase Agreement, including all rights of the Seller under the Servicing Agreements to the extent assigned in the Mortgage Loan Purchase Agreement. The Trustee hereby accepts such assignment, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Purchase Agreement and all rights of the Seller under each Servicing Agreement as if, for such purpose, it were the Depositor or the Seller, as applicable, including the Seller’s right to enforce remedies for breaches of representations and warranties and delivery of the Mortgage Loan documents. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.

 

In connection with such transfer and assignment, the Seller, on behalf of the Depositor, does hereby deliver on the Closing Date, unless otherwise specified in this Section 2.01, to, and deposit with the Trustee, or the Custodian as its designated agent, the following documents or instruments with respect to each Mortgage Loan (a “ Mortgage File ”) so transferred and assigned:

 

In connection with the assignment of any MERS Mortgage Loan, the Seller agrees that it will take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary to cause the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans that are repurchased in accordance with this Agreement) in such computer files the information required by the MERS® System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the HarborView Mortgage Loan Trust 2006-13. Notwithstanding anything herein to the contrary, the Master Servicer and Securities Administrator are not responsible for monitoring any MERS Mortgage Loans.

 

With respect to each Cooperative Loan the Seller, on behalf of the Depositor does hereby deliver to the Trustee (or the Custodian) the related Cooperative Loan Documents and the Seller shall take (or cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law (including but not limited to the relevant UCC) in order to perfect the interest of the Trustee in the related Mortgaged Property.

 

Assignments of each Mortgage with respect to each Mortgage Loan that is not a MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however , that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent Counsel and not at the expense of the Trust Fund or the Trustee) acceptable to the Trustee, each Rating Agency, recording in such states is not required to protect the Trust Fund’s interest in the related Mortgage Loans; provided, further , notwithstanding the delivery of any Opinion of Counsel, each assignment of Mortgage shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of (1) reasonable direction by the Majority Certificateholders, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one Assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than three months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in Section 2.01(v) above with respect to a Mortgage Loan that is not a MERS Mortgage Loan.

 

The Trustee (or the Custodian on its behalf) agrees to execute and deliver to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the form attached as Exhibit G-1 hereto.

 

If the original lender’s title insurance policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(vii) above, the Seller shall deliver or cause to be delivered to the Trustee the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original or a certified copy thereof to be delivered to the Trustee (or the Custodian on its behalf), promptly upon receipt thereof, but in any case within 175 days of the Closing Date. The Seller shall deliver or cause to be delivered to the Trustee (or the Custodian on its behalf), promptly upon receipt thereof, any other documents constituting a part of a Mortgage File received with respect to any Mortgage Loan sold to the Depositor by the Seller, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan.

 

For Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date and prior to the Closing Date, in lieu of the Seller delivering the above documents, the applicable Servicer shall deliver to the Trustee, or to the Custodian on behalf of the Trustee, prior to the first Distribution Date, an Officer’s Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account have been so deposited. All original documents that are not delivered to the Trustee on behalf of the Trust Fund shall be held by the Master Servicer or the applicable Servicer in trust for the Trustee, for the benefit of the Trust Fund and the Certificateholders.

 

The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement.

 

The Depositor shall have the right to receive any and all loan-level information regarding the characteristics and performance of the Mortgage Loans upon request, and to publish, disseminate or otherwise utilize such information in its discretion, subject to applicable laws and regulations.

 

 

The Trustee hereby accepts its appointment as Custodian hereunder and acknowledges the receipt, subject to the provisions of Section 2.01 and subject to the review described below and any exceptions noted on the exception report described in the next paragraph below, of the documents referred to in Section 2.01 above and all other assets included in the definition of “Trust Fund” and declares that, in its capacity as Custodian, it holds and will hold such documents and the other documents delivered to it constituting a Mortgage File, and that it holds or will hold all such assets and such other assets included in the definition of “Trust Fund” in trust for the exclusive use and benefit of all present and future Certificateholders.

 

The Trustee (or the Custodian on its behalf) shall, for the benefit of the Certificateholders, review each Mortgage File delivered to it and to certify and deliver to the Depositor, the Seller and each Rating Agency an interim certification in substantially the form attached hereto as Exhibit G-2, within 90 days after the Closing Date (or, with respect to any document delivered after the Startup Day, within 45 days of receipt and with respect to any Qualified Substitute Mortgage, within five Business Days after the assignment thereof) that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan specifically identified in the exception report annexed thereto as not being covered by such certification), (i) all documents required to be delivered and reviewed by it pursuant to Section 2.01 of this Agreement are in its possession, (ii) such documents have been reviewed by it and have not been mutilated, damaged or torn and relate to such Mortgage Loan and (iii) based on its examination and only as to the foregoing, the information set forth in the Mortgage Loan Schedule that corresponds to items (i), (ii) and (iii) of the Mortgage Loan Schedule accurately reflects information set forth in the Mortgage File. It is herein acknowledged that, in conducting such review, the Trustee (or the Custodian on its behalf) is under no duty or obligation to inspect, review or examine any such documents, instruments, certificates or other papers to determine that they are genuine, enforceable, or appropriate for the represented purpose or that they have actually been recorded or that they are other than what they purport to be on their face.

 

No later than 180 days after the Closing Date, the Trustee shall deliver to the Depositor and the Seller a final certification in the form annexed hereto as Exhibit G-3 evidencing the completeness of the Mortgage Files, with any applicable exceptions noted thereon.

 

If, in the process of reviewing the Mortgage Files and making or preparing, as the case may be, the certifications referred to above, the Trustee finds any document or documents constituting a part of a Mortgage File to be missing or not conforming to the requirements set forth herein, at the conclusion of its review the Trustee (or the Custodian on its behalf) shall promptly notify the Seller and the Depositor. In addition, upon the discovery by the Seller or the Depositor (or upon receipt by the Trustee of written notification of such breach) of a breach of any of the representations and warranties made by the Seller in the Mortgage Loan Purchase Agreement in respect of any Mortgage Loan that materially adversely affects such Mortgage Loan or the interests of the related Certificateholders in such Mortgage Loan, the party discovering such breach shall give prompt written notice to the other parties to this Agreement.

 

The Depositor and the Trustee intend that the assignment and transfer herein contemplated constitute a sale of the Mortgage Loans, the related Mortgage Notes and the related documents, conveying good title thereto free and clear of any liens and encumbrances, from the Depositor to the Trustee and that such property not be part of the Depositor’s estate or property of the Depositor in the event of any insolvency by the Depositor. In the event that such conveyance is deemed to be, or to be made as security for, a loan, the parties intend that the Depositor shall be deemed to have granted and does hereby grant to the Trustee a first priority perfected security interest in all of the Depositor’s right, title and interest in and to the Mortgage Loans, the related Mortgage Notes and the related documents, and that this Agreement shall constitute a security agreement under applicable law.

 

The Trustee is hereby authorized and directed by the Depositor to execute and deliver Transaction Addendum Harborview 2006-13 to the Master Consulting Agreement with the Credit Risk Manager.

 

 

(a)   Upon its discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the related Originator of any representation, warranty or covenant under the related Purchase Agreement in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify such Originator of such defect, missing document or breach and request that such Originator deliver such missing document or cure such defect or breach within 90 days from the date that the Seller was notified of such missing document, defect or breach, and if such Originator does not deliver such missing document or cure such defect or breach in all material respects during such period, the Trustee shall enforce such Originator’s obligation under the related Purchase Agreement and cause such Originator to repurchase that Mortgage Loan from the Trust Fund at the Repurchase Price (as defined in the related Purchase Agreement) on or prior to the Determination Date following the expiration of such 90 day period. It is understood and agreed that the obligation of the related Originator to cure or to repurchase or to substitute for (or, with respect to any costs and damages incurred by the Trust Fund in connection with any violation of any anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against such Originator respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.

 

(b)   Upon its discovery or receipt of written notice of any materially defective document in, or that a document is missing from, a Mortgage File or of the breach by the Seller of any representation, warranty or covenant under the Mortgage Loan Purchase Agreement or in Section 2.04 or Section 2.08 hereof in respect of any Mortgage Loan which materially adversely affects the value of that Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall promptly notify the Seller of such noncompliance, missing document or breach and request that the Seller deliver such missing document or cure such noncompliance or breach within 90 days from the date that the Seller was notified of such missing document, noncompliance or breach, and if the Seller does not deliver such missing document or cure such noncompliance or breach in all material respects during such period, the Trustee shall enforce the Seller’s obligation under the Mortgage Loan Purchase Agreement and cause the Seller to repurchase that Mortgage Loan from the Trust Fund at the Purchase Price on or prior to the Determination Date following the expiration of such 90 day period (subject to Section 2.03(e) below); provided, however, that, in connection with any such breach that could not reasonably have been cured within such 90 day period, if the Seller shall have commenced to cure such breach within such 90 day period, the Seller shall be permitted to proceed thereafter diligently and expeditiously to cure the same within the additional period provided under the Mortgage Loan Purchase Agreement; and, provided further , that, in the case of the breach of any representation, warranty or covenant made by the Seller in Section 2.04 hereof, the Seller shall be obligated to cure such breach or purchase the affected Mortgage Loans for the Purchase Price or, if the Mortgage Loan or the related Mortgaged Property acquired with respect thereto has been sold, then the Seller shall pay, in lieu of the Purchase Price, any excess of the Purchase Price over the Net Liquidation Proceeds received upon such sale.

 

(c)   The Purchase Price or Repurchase Price (as defined in the related Purchase Agreement) for a Mortgage Loan purchased or repurchased under this Section 2.03 or such other amount due shall be deposited in the Distribution Account on or prior to the next Determination Date after the Seller’s or the related Originator’s obligation to repurchase such Mortgage Loan arises. The Trustee (or the Custodian on its behalf), upon receipt of written certification from the Seller or related Originator of the related deposit in the Distribution Account, shall release to the Seller or the related Originator, as applicable, the related Mortgage File and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Seller or the related Originator, as applicable, shall furnish to it and as shall be necessary to vest in the Seller or the related Originator, as applicable, any Mortgage Loan released pursuant hereto and the Trustee (or the Custodian on its behalf) shall have no further responsibility with regard to such Mortgage File (it being understood that the Trustee (or the Custodian on its behalf) shall have no responsibility for determining the sufficiency of such assignment for its intended purpose). In lieu of repurchasing any such Mortgage Loan as provided above, the Seller may cause such Mortgage Loan to be removed from the Trust Fund (in which case it shall become a Deleted Mortgage Loan) and substitute one or more Qualified Substitute Mortgage Loans in the manner and subject to the limitations set forth in Section 2.03(d) below. It is understood and agreed that the obligation of the Seller to cure or to repurchase or to substitute for (or, with respect to any costs and damages incurred by the Trust Fund in connection with any violation of any anti-predatory or anti-abusive lending laws, indemnify for) any Mortgage Loan as to which a document is missing, a material defect in a constituent document exists or as to which such a breach has occurred and is continuing shall constitute the sole remedy against the Seller respecting such omission, defect or breach available to the Trustee on behalf of the Certificateholders.

 

(d)   Notwithstanding anything to the contrary set forth above, with respect to any breach by the Seller of a representation or warranty made by the Seller herein or in the Mortgage Loan Purchase Agreement that materially and adversely affects the value of a Mortgage Loan or the Mortgage Loans or the interest therein of the Certificateholders, if the Seller would not be in breach of such representation or warranty but for a breach by the related Originator of a representation and warranty made by such Originator in the related Purchase Agreement, then related the Originator thereunder, in the manner and to the extent set forth therein, and not the Seller, shall be required to remedy such breach. In addition to such repurchase or substitution obligation, the Seller shall indemnify the Trust Fund and hold it harmless against any losses, damages, penalties, fines, forfeitures, reasonable and necessary legal fees and related costs, judgments, and other costs and expenses resulting from any claim, demand, defense or assertion based on or grounded upon, or resulting from, a breach of the Seller’s representations and warranties contained in Section 2.04.

 

The Trustee shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement including, without limitation, any obligation of the Seller to purchase a Mortgage Loan on account of missing or defective documentation or on account of a breach of a representation, warranty or covenant as described in this Section 2.03(c).

 

(e)   If pursuant to the provisions of Section 2.03(b), the Seller repurchases or otherwise removes from the Trust Fund a Mortgage Loan that is a MERS Mortgage Loan, the Seller shall take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary either (i) cause MERS to execute and deliver an Assignment of Mortgage in recordable form to transfer the Mortgage from MERS to the Seller and shall cause such Mortgage to be removed from registration on the MERS® System in accordance with MERS’ rules and regulations or (ii) cause MERS to designate on the MERS® System the Seller or its designee as the beneficial holder of such Mortgage Loan.

 

(f)   [Reserved].

 

(g)   Any substitution of Qualified Substitute Mortgage Loans for Deleted Mortgage Loans made pursuant to Section 2.03(a) above must be effected prior to the last Business Day that is within two years after the Closing Date. As to any Deleted Mortgage Loan for which the Seller substitutes a Qualified Substitute Mortgage Loan or Loans, such substitution shall be effected by the Seller delivering to the Trustee, for such Qualified Substitute Mortgage Loan or Loans, the Mortgage Note, the Mortgage, the Assignment to the Trustee, and such other documents and agreements, with all necessary endorsements thereon, as are required by Section 2.01 hereof, together with an Officers’ Certificate stating that each such Qualified Substitute Mortgage Loan satisfies the definition thereof and specifying the Substitution Adjustment (as described below), if any, in connection with such substitution; provided, however, that, in the case of any Qualified Substitute Mortgage Loan that is a MERS Mortgage Loan, the Seller shall provide such documents and take such other action with respect to such Qualified Substitute Mortgage Loans as are required pursuant to Section 2.01 hereof. The Trustee (or the Custodian on its behalf), shall acknowledge receipt for such Qualified Substitute Mortgage Loan or Loans and, within five Business Days thereafter, shall review such documents as specified in Section 2.02 hereof and deliver to the related Servicer, with respect to such Qualified Substitute Mortgage Loan or Loans, a certification substantially in the form attached hereto as Exhibit G-2, with any exceptions noted thereon. Within 180 days of the date of substitution, the Trustee (or the Custodian on its behalf), shall deliver to the Seller and the Master Servicer a certification substantially in the form of Exhibit G-3 hereto with respect to such Qualified Substitute Mortgage Loan or Loans, with any exceptions noted thereon. Monthly Payments due with respect to Qualified Substitute Mortgage Loans in the month of substitution are not part of the Trust Fund and will be retained by the Seller. For the month of substitution, distributions to Certificateholders will reflect the collections and recoveries in respect of such Deleted Mortgage Loan in the Due Period preceding the month of substitution and the Depositor or the Seller, as the case may be, shall thereafter be entitled to retain all amounts subsequently received in respect of such Deleted Mortgage Loan. The Seller shall give or cause to be given written notice to the Certificateholders that such substitution has taken place, shall amend the Mortgage Loan Schedule to reflect the removal of such Deleted Mortgage Loan from the terms of this Agreement and the substitution of the Qualified Substitute Mortgage Loan or Loans and shall deliver a copy of such amended Mortgage Loan Schedule to the Trustee, the Custodian, the Master Servicer and the Securities Administrator. Upon such substitution, such Qualified Substitute Mortgage Loan or Loans shall constitute part of the Trust Fund and shall be subject in all respects to the terms of this Agreement and, in the case of a substitution effected by the Seller, the Mortgage Loan Purchase Agreement, including, in the case of a substitution effected by the Seller all representations and warranties thereof included in the Mortgage Loan Purchase Agreement and all representations and warranties thereof set forth in Section 2.04 hereof, in each case as of the date of substitution.

 

For any month in which the Seller substitutes one or more Qualified Substitute Mortgage Loans for one or more Deleted Mortgage Loans, the Seller shall determine, and provide written certification to the Trustee and the Seller as to the amount (each, a “Substitution Adjustment”), if any, by which the aggregate Purchase Price of all such Deleted Mortgage Loans exceeds the aggregate, as to each such Qualified Substitute Mortgage Loan, of the principal balance thereof as of the date of substitution, together with one month’s interest on such principal balance at the applicable Net Loan Rate. On or prior to the next Determination Date after the Seller’s obligation to repurchase the related Deleted Mortgage Loan arises, the Seller will deliver or cause to be delivered to the Securities Administrator for deposit in the Distribution Account an amount equal to the related Substitution Adjustment, if any, and the Custodian, on behalf of the Trustee, upon receipt of the related Qualified Substitute Mortgage Loan or Loans, and a written certification from the Seller of its remittance of the deposit to the Distribution Account, shall release to the Seller the related Mortgage File or Files and shall execute and deliver such instruments of transfer or assignment, in each case without recourse, as the Seller shall deliver to it and as shall be necessary to vest therein any Deleted Mortgage Loan released pursuant hereto.

 

In addition, the Seller shall obtain at its own expense and deliver to the Trustee an Opinion of Counsel to the effect that such substitution (either specifically or as a class of transactions) will not cause an Adverse REMIC Event. If such Opinion of Counsel cannot be delivered, then such substitution may only be effected at such time as the required Opinion of Counsel can be given.

 

(h)   Upon discovery by the Seller, the Master Servicer, the Depositor or the Trustee that any Mortgage Loan does not constitute a “qualified mortgage” within the meaning of Section 860G(a)(3) of the Code, the party discovering such fact shall within two Business Days give written notice thereof to the other parties. In connection therewith, the Seller shall repurchase or, subject to the limitations set forth in Section 2.03(e), substitute one or more Qualified Substitute Mortgage Loans for the affected Mortgage Loan within 90 days of the earlier of discovery or receipt of such notice with respect to such affected Mortgage Loan. Any such repurchase or substitution shall be made in the same manner as set forth in Section 2.03(b) above, if made by the Seller. The Trustee shall reconvey to the Seller the Mortgage Loan to be released pursuant hereto in the same manner, and on the same terms and conditions, as it would a Mortgage Loan repurchased for breach of a representation or warranty.

 

(i)   Notwithstanding the foregoing, to the extent that any fact, condition or event with respect to a Mortgage Loan constitutes a breach of both (i) a representation or warranty of the applicable Originator under the applicable Purchase Agreement and (ii) a representation or warranty of the Seller under this Agreement, in each case, which materially adversely affects the value of such Mortgage Loan or the interest therein of the Certificateholders, the Trustee shall first request that the Originator cure such breach or repurchase such Mortgage Loan and if the Originator fails to cure such breach or repurchase such Mortgage Loan within 60 days of receipt of such request from the Trustee, the Trustee shall then request that the Seller cure such breach or repurchase such Mortgage Loans.

 

 

The Seller hereby makes the following representations and warranties to the Trustee on behalf of the Certificateholders as of the Closing Date with respect to the Mortgage Loans:

 

With respect to the representations and warranties incorporated in this Section 2.04 that are made to the best of the Seller’s knowledge or as to which the Seller has no knowledge, if it is discovered by the Depositor, the Seller, the Master Servicer or the Trustee that the substance of such representation and warranty is inaccurate and such inaccuracy materially and adversely affects the value of the related Mortgage Loan or the interest therein of the Certificateholders then, notwithstanding the Seller’s lack of knowledge with respect to the substance of such representation and warranty being inaccurate at the time the representation or warranty was made, such inaccuracy shall be deemed a breach of the applicable representation or warranty.

 

It is understood and agreed that the representations and warranties incorporated in this Section 2.04 shall survive delivery of the Mortgage Files to the Trustee and shall inure to the benefit of the Certificateholders notwithstanding any restrictive or qualified endorsement or assignment. Upon discovery by any of the Depositor, the Seller, the Master Servicer or the Trustee of a breach of any of the foregoing representations and warranties which materially and adversely affects the value of any Mortgage Loan or the interests therein of the Certificateholders, the party discovering such breach shall give prompt written notice to the other parties, and in no event later than two Business Days from the date of such discovery. It is understood and agreed that the obligations of the Seller set forth in Section 2.03(b) hereof to cure, substitute for or repurchase (or, with respect to any costs and damages incurred by the trust fund in connection with any violation of any anti-predatory or anti-abusive lending laws, indemnify for) a related Mortgage Loan pursuant to the Mortgage Loan Purchase Agreement constitute the sole remedies available to the Certificateholders or to the Trustee on their behalf respecting a breach of the representations and warranties incorporated in this Section 2.04.

 

 

The Depositor represents and warrants to the Trust Fund and the Trustee on behalf of the Certificateholders and to as follows:

 

The Trustee acknowledges the assignment to it of the Mortgage Loans and the delivery to it of the Mortgage Files, subject to the provisions of Sections 2.01 and 2.02 hereof, together with the assignment to it of all other assets included in the Trust Fund, receipt of which is hereby acknowledged. Concurrently with such assignment and delivery and in exchange therefor, the Securities Administrator, pursuant to the written request of the Depositor executed by an officer of the Depositor, has caused to be executed, authenticated and delivered to or upon the order of the Depositor, the Certificates in authorized denominations. The interests evidenced by the Certificates constitute the entire beneficial ownership interest in the Trust Fund.

 

 

The Seller hereby represents and warrants to the Trustee on behalf of the Certificateholders that, as of the Closing Date or as of such date specifically provided herein:

 

The Seller hereby covenants that, except for the transfer hereunder, the Seller will not sell, pledge, assign or transfer to any other Person, or grant, create, incur, assume or suffer to exist any lien on any Mortgage Loan, or any interest therein; the Seller will notify the Trustee, as assignee of the Depositor, and the Master Servicer of the existence of any lien on any Mortgage Loan immediately upon discovery thereof, and the Seller will defend the right, title and interest of the Trustee, as assignee of the Depositor, in, to and under the Mortgage Loans, against all claims of third parties claiming through or under the Seller; provided, however , that nothing in this Section 2.09 shall prevent or be deemed to prohibit the Seller from suffering to exist upon any of the Mortgage Loans any liens for municipal or other local taxes and other governmental charges if such taxes or governmental charges shall not at the time be due and payable or if the Seller shall currently be contesting the validity thereof in good faith by appropriate proceedings and shall have set aside on its books adequate reserves with respect thereto. The Seller shall, within 30 days after the Closing Date, provide the Trustee, the Servicer, the Certificate Insurer, the Securities Administrator and the Depositor a complete list of each party to the HarborView Mortgage Loan Trust 2006-13 transaction.

 

 

The Master Servicer shall supervise, monitor and oversee the obligation of the Servicers to service and administer their respective Mortgage Loans in accordance with the terms of the applicable Servicing Agreement and shall have full power and authority to do any and all things which it may deem necessary or desirable in connection with such master servicing and administration. In performing its obligations hereunder, the Master Servicer shall act in a manner consistent with Accepted Master Servicing Practices. Furthermore, the Master Servicer shall oversee and consult with each Servicer as necessary from time-to-time to carry out the Master Servicer’s obligations hereunder, shall receive, review and evaluate all reports, information and other data provided to the Master Servicer by each Servicer and shall cause each Servicer to perform and observe the covenants, obligations and conditions to be performed or observed by such Servicer under the applicable Servicing Agreement. Notwithstanding anything in this Agreement, the Servicing Agreements or the Credit Risk Management Agreements to the contrary, the Master Servicer shall have no duty or obligation to enforce the Credit Risk Management Agreements or to supervise, monitor or oversee the activities of the Servicers under the related Credit Risk Management Agreements with respect to any action taken or not taken by the applicable Servicer at the direction of the Seller or pursuant to a recommendation of the Credit Risk Manager. The Master Servicer shall independently and separately monitor each Servicer’s servicing activities with respect to each related Mortgage Loan, reconcile the results of such monitoring with such information provided in the previous sentence on a monthly basis and coordinate corrective adjustments to the Servicers’ and Master Servicer’s records, and provide such reconciled and corrected information to the Securities Administrator to enable it to prepare the statements specified in Section 5.04 and any other information and statements required of the Securities Administrator hereunder. The Master Servicer shall reconcile the results of its Mortgage Loan monitoring with the actual remittances of the Servicers to the related Servicing Account pursuant to the applicable Servicing Agreements.

 

The Trustee shall furnish the Servicers and the Master Servicer with any limited powers of attorney and other documents in form acceptable to the Trustee, necessary or appropriate to enable the Servicers and the Master Servicer to service and administer the related Mortgage Loans and REO Property, which limited powers of attorney shall provide that the Trustee will not be liable for the actions or omissions of the Servicers or Master Servicer in exercising such powers.

 

The Master Servicer shall not without the Trustee’s written consent (i) initiate any action, suit or proceeding solely under the Trustee’s name without indicating the Master Servicer’s representative capacity or (ii) take any action with the intent to cause, and which actually does cause, the Trustee to be registered to do business in any state. The Master Servicer shall indemnify the Trustee for any and all costs, liabilities and expenses incurred by the Trustee in connection with the negligent or willful misuse of such powers of attorney by the Master Servicer.

 

The Trustee shall provide access to the records and documentation in possession of the Trustee (including in its capacity as Custodian hereunder) regarding the related Mortgage Loans and REO Property and the servicing thereof to the Certificateholders, the FDIC, and the supervisory agents and examiners of the FDIC, such access being afforded only upon reasonable prior written request and during normal business hours at the office of the Trustee; provided, however , that, unless otherwise required by law, the Trustee shall not be required to provide access to such records and documentation if the provision thereof would violate the legal right to privacy of any Mortgagor. The Trustee shall allow representatives of the above entities to photocopy any of the records and documentation and shall provide equipment for that purpose at a charge that covers the Trustee’s actual costs.

 

The Trustee, upon the written request of the related Servicer or the Master Servicer, as applicable, shall execute and deliver to the related Servicer and the Master Servicer any court pleadings, requests for trustee’s sale or other documents necessary or desirable to (i) the foreclosure or trustee’s sale with respect to a Mortgaged Property; (ii) any legal action brought to obtain judgment against any Mortgagor on the Mortgage Note or Mortgage; (iii) obtain a deficiency judgment against the Mortgagor; or (iv) enforce any other rights or remedies provided by the Mortgage Note or Mortgage or otherwise available at law or equity.

 

 

For as long as each REMIC created hereunder shall exist, the Trustee and the Securities Administrator shall act in accordance herewith to treat each of such REMIC as a REMIC, and the Trustee and the Securities Administrator shall comply with any directions of the Depositor, the related Servicer or the Master Servicer to assure such continuing treatment. In particular, the Trustee, the Securities Administrator and the Master Servicer shall not (a) sell or knowingly permit the sale of all or any portion of the Mortgage Loans or of any investment of deposits in an Account unless such sale is as a result of a repurchase of the Mortgage Loans or is otherwise permitted pursuant to this Agreement or any Servicing Agreement or the Trustee has received a REMIC Opinion prepared at the expense of the Trust Fund; and (b) other than with respect to a substitution pursuant to the Mortgage Loan Purchase Agreement or Section 2.03 or 2.04 of this Agreement or as otherwise provided in this Agreement or any Servicing Agreement, as applicable, accept any contribution to any REMIC after the Startup Day without receipt of a REMIC Opinion.

 

(a)   The Master Servicer shall be responsible for reporting to the Trustee (on behalf of the Trust Fund) and the Depositor the compliance by each Servicer with its duties under the related Servicing Agreement. In the review of each Servicer’s activities, the Master Servicer may rely upon an officer’s certificate of the Servicer with regard to such Servicer’s compliance with the terms of its Servicing Agreement. In the event that the Master Servicer, in its judgment, determines that a Servicer should be terminated in accordance with its Servicing Agreement, or that a notice should be sent pursuant to such Servicing Agreement with respect to the occurrence of an event that, unless cured, would constitute grounds for such termination, the Master Servicer shall notify the Depositor and the Trustee thereof, and the Master Servicer shall issue such notice or take such other action as it deems appropriate.

 

(b)   The Master Servicer, for the benefit of the Trust Fund and the Certificateholders, shall (acting as agent of the Trust Fund when enforcing the Trust Fund’s rights under each Servicing Agreement) (i) enforce the obligations of each Servicer under the related Servicing Agreement, and (ii) in the event that a Servicer fails to perform its obligations in accordance with the related Servicing Agreement, subject to the preceding paragraph, terminate the rights and obligations of such Servicer thereunder and act as servicer of the related Mortgage Loans or enter into a new Servicing Agreement with a successor Servicer selected by the Master Servicer which the Master Servicer shall cause the Trustee to acknowledge; provided, however , it is understood and acknowledged by the parties hereto that there will be a period of transition (not to exceed 90 days) before the actual servicing functions can be fully transferred to such successor Servicer. Such enforcement, including, without limitation, the legal prosecution of claims, termination of Servicing Agreements and the pursuit of other appropriate remedies, shall be in such form and carried out to such an extent and at such time as the Master Servicer, in its good faith business judgment, would require were it the owner of the related Mortgage Loans. The Master Servicer shall pay the costs of such enforcement at its own expense except as provided in paragraph (c) below, provided that the Master Servicer shall not be required to prosecute or defend any legal action except to the extent that the Master Servicer shall have received reasonable indemnity for its costs and expenses in pursuing such action from the Trust Fund.

 

(c)   To the extent that the costs and expenses of the Master Servicer related to any termination of a Servicer, appointment of a successor Servicer or the transfer and assumption of servicing by the Master Servicer or a successor Servicer with respect to any Servicing Agreement (including, without limitation, (i) all reasonable legal costs and expenses and all due diligence costs and expenses associated with an evaluation of the potential termination of the Servicer as a result of an event of default by such Servicer and (ii) all reasonable costs and expenses associated with the complete transfer of servicing, including all servicing files and all servicing data and the completion, correction or manipulation of such servicing data as may be required by the successor servicer to correct any errors or insufficiencies in the servicing data or otherwise to enable the successor servicer to service the Mortgage Loans in accordance with the related Servicing Agreement) are not fully and timely reimbursed by the terminated Servicer, the Master Servicer shall be entitled to reimbursement of such reasonable costs and expenses from the Distribution Account.

 

(d)   The Master Servicer shall require each Servicer to comply with the remittance requirements and other obligations set forth in the related Servicing Agreement.

 

(e)   If the Master Servicer acts as Servicer, it will not assume liability for the representations and warranties of the predecessor Servicer, if any, that it replaces or for any errors, acts or omissions of such predecessor Servicer occurring prior to the termination of such Servicer; provided, however , the Master Servicer shall not be relieved of its liability, if any, as Master Servicer under this Section 3.03(e).

 

 

(a)   The Master Servicer, at its expense, shall maintain in effect a blanket fidelity bond and an errors and omissions insurance policy, affording coverage with respect to all directors, officers, employees and other Persons acting on such Master Servicer’s behalf, and covering errors and omissions in the performance of the Master Servicer’s obligations hereunder. The errors and omissions insurance policy and the fidelity bond shall be in such form and amount generally acceptable for entities serving as master servicers or trustees. The Master Servicer shall provide the Trustee a copy of such policy and fidelity bond upon request.

 

(b)   The Master Servicer shall promptly report to the Trustee any material changes that may occur in the Master Servicer fidelity bond or the Master Servicer errors and omissions insurance policy and shall furnish to the Trustee, on request, certificates evidencing that such bond and insurance policy are in full force and effect. The Master Servicer shall promptly report to the Trustee all cases of embezzlement or fraud, if such events involve funds relating to the Mortgage Loans. The total losses relating to the Mortgage Loans, regardless of whether claims are filed with the applicable insurer or surety, shall be disclosed in such reports together with the amount of such losses covered by insurance. If a bond or insurance claim report relating to the Mortgage Loans is filed with any of such bonding companies or insurers, the Master Servicer shall promptly furnish a copy of such report to the Trustee. Any amounts relating to the Mortgage Loans collected by the Master Servicer under any such bond or policy shall be promptly remitted by the Master Servicer to the Securities Administrator for deposit into the Distribution Account. Any amounts relating to the Mortgage Loans collected by the applicable Servicer under any such bond or policy shall be remitted to the Master Servicer to the extent provided in the applicable Servicing Agreement.

 

 

The Master Servicer shall master service the Mortgage Loans and shall have full power and authority, subject to the REMIC Provisions and the provisions of Article X hereof, to do any and all things that it may deem necessary or desirable in connection with the master servicing and administration of the Mortgage Loans, including but not limited to the power and authority (i) to execute and deliver, on behalf of the Certificateholders, the Trust Fund and the Trustee, customary consents or waivers and other instruments and documents, (ii) to consent to transfers of any Mortgaged Property and assumptions of the Mortgage Notes and related Mortgages, (iii) to collect any Insurance Proceeds, Liquidation Proceeds and Recoveries, and (iv) to effectuate, either in its own name on behalf of the Trust Fund, or in the name of the Trust Fund, foreclosure or other conversion of the ownership of the Mortgaged Property securing any Mortgage Loan, in each case, in accordance with the provisions of this Agreement and the related Servicing Agreement, as applicable; provided, however , that the Master Servicer shall not (and, consistent with its responsibilities under Section 3.03, shall not permit any Servicer to) knowingly or intentionally take any action, or fail to take (or fail to cause to be taken) any action reasonably within its control and the scope of duties more specifically set forth herein, that, under the REMIC Provisions, if taken or not taken, as the case may be, would result in an Adverse REMIC Event unless the Master Servicer has received an Opinion of Counsel (but not at the expense of the Master Servicer) to the effect that the contemplated action will not result in an Adverse REMIC Event. The Trustee shall furnish the Master Servicer, upon written request from a Servicing Officer, with any limited powers of attorney empowering the Master Servicer or any Servicer to execute and deliver instruments of satisfaction or cancellation, or of partial or full release or discharge, and to foreclose upon or otherwise liquidate Mortgaged Property, and to appeal, prosecute or defend in any court action relating to the Mortgage Loans or the Mortgaged Property, in accordance with the applicable Servicing Agreement and this Agreement, and the Trustee shall execute and deliver such other documents, as the Master Servicer may request, to enable the Master Servicer to master service and administer the Mortgage Loans and carry out its duties hereunder, in each case in accordance with Accepted Master Servicing Practices (and the Trustee shall have no liability for misuse of any such powers of attorney by the Master Servicer or any Servicer). In instituting foreclosures or similar proceedings, the Master Servicer shall institute such proceedings either in its own name on behalf of the Trust Fund, or in the name of the Trust Fund (or cause the related Servicer, pursuant to the related Servicing Agreement, to institute such proceedings either in the name of such Servicer on behalf of the Trust, or in the name of the Trust Fund), unless otherwise required by law or otherwise appropriate. If the Master Servicer or the Trustee has been advised that it is likely that the laws of the state in which action is to be taken prohibit such action if taken in the name of the Trust Fund or the Trustee on its behalf or that the Trust Fund or the Trustee, as applicable, would be adversely affected under the “doing business” or tax laws of such state if such action is taken in its name, the Master Servicer shall join with the Trustee, on behalf of the Trust Fund, in the appointment of a co-trustee pursuant to Section 8.10 hereof. In the performance of its duties hereunder, the Master Servicer shall be an independent contractor and shall not, except in those instances where it is taking action in the name of the Trustee, be deemed to be the agent of the Trustee on behalf of the Trust Fund.

 

 

To the extent provided in the applicable Servicing Agreement and to the extent Mortgage Loans contain enforceable due-on-sale clauses, the Master Servicer shall cause the Servicers to enforce such clauses in accordance with the applicable Servicing Agreement. If applicable law prohibits the enforcement of a due-on-sale clause or such clause is otherwise not enforced in accordance with the applicable Servicing Agreement, and, as a consequence, a Mortgage Loan is assumed, the original Mortgagor may be released from liability in accordance with the applicable Servicing Agreement.

 

(a)   Upon becoming aware of the payment in full of any Mortgage Loan, or the receipt by any Servicer of a notification that payment in full has been escrowed in a manner customary for such purposes for payment to Certificateholders on the next Distribution Date, the Servicer will, if required under the applicable Servicing Agreement, promptly furnish to the Custodian, on behalf of the Trustee, two copies of a certification substantially in the form of Exhibit F hereto signed by a Servicing Officer or in a mutually agreeable electronic format which will, in lieu of a signature on its face, originate from a Servicing Officer (which certification shall include a statement to the effect that all amounts received in connection with such payment that are required to be deposited in the related Servicing Account maintained by the applicable Servicer pursuant to Section 4.01 or by the applicable Servicer pursuant to its Servicing Agreement have been or will be so deposited) and shall request that the Trustee (or the Custodian, on behalf of the Trustee) deliver to the applicable Servicer the related Mortgage File. Upon receipt of such certification and request, the Trustee (or the Custodian, on behalf of the Trustee), shall promptly release the related Mortgage File to the applicable Servicer and the Trustee (and the Custodian, if applicable) shall have no further responsibility with regard to such Mortgage File. Upon any such payment in full, each Servicer is authorized, to give, as agent for the Trustee, as the mortgagee under the Mortgage that secured the Mortgage Loan, an instrument of satisfaction (or assignment of mortgage without recourse) regarding the Mortgaged Property subject to the Mortgage, which instrument of satisfaction or assignment, as the case may be, shall be delivered to the Person or Persons entitled thereto against receipt therefor of such payment, it being understood and agreed that no expenses incurred in connection with such instrument of satisfaction or assignment, as the case may be, shall be chargeable to the related Servicing Account.

 

(b)   From time to time and as appropriate for the servicing or foreclosure of any Mortgage Loan and in accordance with the applicable Servicing Agreement, the Trustee shall execute such documents as shall be prepared and furnished to the Trustee by a Servicer or the Master Servicer (in form reasonably acceptable to the Trustee) and as are necessary to the prosecution of any such proceedings. The Trustee (or the Custodian, on behalf of the Trustee), shall, upon the request of a Servicer or the Master Servicer, and upon delivery to the Trustee (or the Custodian, on behalf of the Trustee) of two copies of a request for release signed by a Servicing Officer substantially in the form of Exhibit F (or in a mutually agreeable electronic format which will, in lieu of a signature on its face, originate from a Servicing Officer), release the related Mortgage File held in its possession or control to the Servicer or the Master Servicer, as applicable. Such trust receipt shall obligate the Servicer or the Master Servicer to return the Mortgage File to the Trustee (or the Custodian on behalf of the Trustee) when the need therefor by the Servicer or the Master Servicer no longer exists unless the Mortgage Loan shall be liquidated, in which case, upon receipt of a certificate of a Servicing Officer similar to that hereinabove specified, the Mortgage File shall be released by the Trustee (or the Custodian, on behalf of the Trustee), to the Servicer or the Master Servicer.

 

(a)   The Master Servicer shall transmit and each Servicer (to the extent required by the related Servicing Agreement) shall transmit to the Trustee (or Custodian) such documents and instruments coming into the possession of the Master Servicer or such Servicer from time to time as are required by the terms hereof or, in the case of the Servicers, by the applicable Servicing Agreement, to be delivered to the Trustee (or Custodian). Any funds received by the Master Servicer or by a Servicer in respect of any Mortgage Loan or which otherwise are collected by the Master Servicer or by a Servicer as Liquidation Proceeds, Insurance Proceeds or Recoveries in respect of any Mortgage Loan shall be held for the benefit of the Trust Fund and the Certificateholders, subject to the Master Servicer’s right to retain or withdraw from the Distribution Account the Master Servicing Fee, any additional compensation pursuant to Section 3.14 and any other amounts provided in this Agreement, and to the right of each Servicer to retain its Servicing Fee and any other amounts as provided in the applicable Servicing Agreement. The Master Servicer shall, and (to the extent provided in the applicable Servicing Agreement) shall cause each Servicer to, provide access to information and documentation regarding the Mortgage Loans to the Trustee, their respective agents and accountants at any time upon reasonable request and during normal business hours, and to Certificateholders that are savings and loan associations, banks or insurance companies, the Office of Thrift Supervision, the FDIC and the supervisory agents and examiners of such Office and Corporation or examiners of any other federal or state banking or insurance regulatory authority if so required by applicable regulations of the Office of Thrift Supervision or other regulatory authority, such access to be afforded without charge but only upon reasonable request in writing and during normal business hours at the offices of the Master Servicer designated by it. In fulfilling such a request the Master Servicer shall not be responsible for determining the sufficiency of such information.

 

(b)   All Mortgage Files and funds collected or held by, or under the control of, the Master Servicer, in respect of any Mortgage Loans, whether from the collection of principal and interest payments or from Liquidation Proceeds, Insurance Proceeds or Recoveries, shall be held by the Master Servicer for and on behalf of the Trust Fund and the Certificateholders and shall be and remain the sole and exclusive property of the Trust Fund; provided, however , that the Master Servicer and each Servicer shall be entitled to setoff against, and deduct from, any such funds any amounts that are properly due and payable to the Master Servicer or such Servicer under this Agreement or the applicable Servicing Agreement.

 

(a)   For each Mortgage Loan (other than a Cooperative Loan), the Master Servicer shall enforce any obligation of the Servicers under the related Servicing Agreements to maintain or cause to be maintained standard fire and casualty insurance and, where applicable, flood insurance, all in accordance with the provisions of the related Servicing Agreements. It is understood and agreed that such insurance shall be with insurers meeting the eligibility requirements set forth in the applicable Servicing Agreement and that no earthquake or other additional insurance is to be required of any Mortgagor or to be maintained on property acquired in respect of a defaulted loan, other than pursuant to such applicable laws and regulations as shall at any time be in force and as shall require such additional insurance.

 

(b)   Pursuant to Sections 4.01 and 4.02, any amounts collected by any Servicer or the Master Servicer under any insurance policies (other than amounts to be applied to the restoration or repair of the property subject to the related Mortgage or released to the Mortgagor in accordance with the applicable Servicing Agreement) shall be deposited into the Distribution Account, subject to withdrawal pursuant to Sections 4.02 and 4.03. Any cost incurred by the Master Servicer or any Servicer in maintaining any such insurance if the Mortgagor defaults in its obligation to do so shall be added to the amount owing under the Mortgage Loan where the terms of the Mortgage Loan so permit; provided, however , that the addition of any such cost shall not be taken into account for purposes of calculating the distributions to be made to Certificateholders and shall be recoverable by the Master Servicer or such Servicer pursuant to Sections 4.02 and 4.03.

 

 

The Master Servicer shall (to the extent provided in the applicable Servicing Agreement) cause the related Servicer to prepare and present on behalf of the Trustee, the Trust Fund and the Certificateholders all claims under the Insurance Policies and take such actions (including the negotiation, settlement, compromise or enforcement of the insured’s claim) as shall be necessary to realize recovery under such policies. Any proceeds disbursed to the Master Servicer (or disbursed to a Servicer and remitted to the Master Servicer) in respect of such policies, bonds or contracts shall be promptly deposited in the Distribution Account upon receipt, except that any amounts realized that are to be applied to the repair or restoration of the related Mortgaged Property as a condition precedent to the presentation of claims on the related Mortgage Loan to the insurer under any applicable Insurance Policy need not be so deposited (or remitted).

 

(a)   The Master Servicer shall not take, or permit any Servicer (to the extent such action is prohibited under the applicable Servicing Agreement) to take, any action that would result in noncoverage under any applicable Primary Insurance Policy of any loss which, but for the actions of such Master Servicer or Servicer, would have been covered thereunder. The Master Servicer shall use its best reasonable efforts to cause each Servicer (to the extent required under the related Servicing Agreement) to keep in force and effect (to the extent that the Mortgage Loan requires the Mortgagor to maintain such insurance), primary mortgage insurance applicable to each Mortgage Loan (including any lender-paid Primary Insurance Policy) in accordance with the provisions of this Agreement and the related Servicing Agreement, as applicable. The Master Servicer shall not, and shall not permit any Servicer (to the extent required under the related Servicing Agreement) to, cancel or refuse to renew any such Primary Insurance Policy that is in effect at the date of the initial issuance of the Mortgage Note and is required to be kept in force hereunder except in accordance with the provisions of this Agreement and the related Servicing Agreement, as applicable.

 

(b)   The Master Servicer agrees to cause each Servicer (to the extent required under the related Servicing Agreement) to present, on behalf of the Trustee, the Trust and the Certificateholders, claims to the insurer under any Primary Insurance Policies and, in this regard, to take such reasonable action as shall be necessary to permit recovery under any Primary Insurance Policies respecting defaulted Mortgage Loans. Pursuant to Section 4.01, any amounts collected by the Servicer under any Primary Insurance Policies shall be remitted to the Securities Administrator for deposit in the Distribution Account, subject to withdrawal pursuant to Section 4.03.

 

 

The Trustee (or the Custodian, as directed by the Trustee), shall retain possession and custody of the originals (to the extent available and delivered) of any Primary Insurance Policies or certificate of insurance if applicable and available, and any certificates of renewal as to the foregoing as may be issued from time to time as contemplated by this Agreement and which come into its possession. Until all amounts distributable in respect of the Certificates have been distributed in full and the Master Servicer otherwise has fulfilled its obligations under this Agreement, the Trustee (or the Custodian, as directed by the Trustee) shall also retain possession and custody of each Mortgage File in accordance with and subject to the terms and conditions of this Agreement. The Master Servicer shall promptly deliver or cause to be delivered to the Trustee (or the Custodian, as directed by the Trustee), upon the execution or receipt thereof the originals of any Primary Insurance Policies, any certificates of renewal, and such other documents or instruments that constitute portions of the Mortgage File that come into the possession of the Master Servicer from time to time.

 

 

The Master Servicer shall cause each Servicer (to the extent required under the related Servicing Agreement) to foreclose upon, repossess or otherwise comparably convert the ownership of Mortgaged Properties securing such of the Mortgage Loans as come into and continue in default and as to which no satisfactory arrangements can be made for collection of delinquent payments, all in accordance with the applicable Servicing Agreement.

 

 

The Master Servicer shall be entitled to receive the Master Servicing Fee and, pursuant to Section 4.02(c), certain income and gain realized from any investment of funds in the Distribution Account shall be for the benefit of the Master Servicer as additional compensation. Servicing compensation in the form of assumption fees, if any, late payment charges, as collected, if any, or otherwise (but, unless otherwise specifically permitted in the applicable Servicing Agreement, not including any Prepayment Penalty Amounts) shall be retained by the applicable Servicer, or the Master Servicer, and shall not be deposited in