EXECUTION COPY
GREENWICH CAPITAL ACCEPTANCE, INC.,
Depositor
GREENWICH CAPITAL FINANCIAL PRODUCTS,
INC.,
Seller
WELLS FARGO BANK, N.A.
Master Servicer and Securities
Administrator
and
DEUTSCHE BANK NATIONAL TRUST COMPANY,
Trustee and Custodian
POOLING AND SERVICING
AGREEMENT
Dated as of August 1, 2005
__________________________________
HarborView Mortgage Loan Trust
2005-11
Mortgage Loan Pass-Through Certificates,
Series 2005-11
Table of
Contents
Page
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
SECTION 1.01.
Defined Terms.
7
SECTION 1.02.
Accounting.
56
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS; ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01.
Conveyance of Mortgage Loans.
57
SECTION 2.02.
Acceptance by Trustee.
60
SECTION 2.03.
Repurchase or Substitution of Mortgage
Loans by the Originators and
the Seller.
62
SECTION 2.04.
Representations and Warranties of the
Seller with Respect to the
Mortgage Loans.
65
SECTION 2.05.
[Reserved].
66
SECTION 2.06.
Representations and Warranties of the
Depositor.
66
SECTION 2.07.
Issuance of Certificates.
68
SECTION 2.08.
Representations and Warranties of the
Seller.
68
SECTION 2.09.
Covenants of the Seller.
70
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE
LOANS
SECTION 3.01.
Master Servicer to Service and Administer
the Mortgage Loans.
71
SECTION 3.02.
REMIC-Related Covenants.
72
SECTION 3.03.
Monitoring of Servicer.
72
SECTION 3.04.
Fidelity Bond.
74
SECTION 3.05.
Power to Act; Procedures.
74
SECTION 3.06.
Due-on-Sale Clauses; Assumption
Agreements.
75
SECTION 3.07.
Release of Mortgage Files.
75
SECTION 3.08.
Documents, Records and Funds in
Possession of Master Servicer to be
Held for Trust.
76
SECTION 3.09.
Standard Hazard Insurance and Flood
Insurance Policies
77
SECTION 3.10.
Presentment of Claims and Collection of
Proceeds.
77
SECTION 3.11.
Maintenance of the Primary Insurance
Policies.
78
SECTION 3.12.
Trustee to Retain Possession of Certain
Insurance Policies and
Documents.
78
SECTION 3.13.
Realization Upon Defaulted Mortgage
Loans.
79
SECTION 3.14.
Additional Compensation to the Master
Servicer.
79
SECTION 3.15.
REO Property.
79
SECTION 3.16.
Annual Officer’s Certificate as to
Compliance.
80
SECTION 3.17.
Annual Independent Accountant’s
Servicing Report.
80
SECTION 3.18.
Reports Filed with Securities and
Exchange Commission.
81
SECTION 3.19.
[Reserved].
82
SECTION 3.20.
[Reserved].
82
SECTION 3.21.
[Reserved].
82
SECTION 3.22.
[Reserved].
82
SECTION 3.23.
Closing Opinion of Counsel.
82
SECTION 3.24.
Liabilities of the Master
Servicer.
82
SECTION 3.25.
Merger or Consolidation of the Master
Servicer.
82
SECTION 3.26.
Indemnification of the Trustee, the
Master Servicer and the Securities
Administrator.
83
SECTION 3.27.
Limitations on Liability of the Master
Servicer and Others.
83
SECTION 3.28.
Master Servicer Not to Resign.
85
SECTION 3.29.
Successor Master Servicer.
85
SECTION 3.30.
Sale and Assignment of Master
Servicing.
85
ARTICLE IV
ACCOUNTS
SECTION 4.01.
Servicing Accounts
86
SECTION 4.02.
Distribution Account.
87
SECTION 4.03.
Permitted Withdrawals and Transfers from
the Distribution Account.
89
SECTION 4.04.
Yield Maintenance Account.
90
SECTION 4.05.
Certificate Insurance Policy.
92
ARTICLE V
FLOW OF FUNDS
SECTION 5.01.
Distributions.
94
SECTION 5.02.
Allocation of Net Deferred
Interest.
99
SECTION 5.03.
Allocation of Realized Losses.
100
SECTION 5.04.
Statements.
101
SECTION 5.05.
Remittance Reports; Advances.
104
SECTION 5.06.
Compensating Interest
Payments.
104
SECTION 5.07.
Basis Risk Reserve Fund.
105
SECTION 5.08.
Recoveries.
106
ARTICLE VI
THE CERTIFICATES
SECTION 6.01.
The Certificates.
107
SECTION 6.02.
Registration of Transfer and Exchange of
Certificates.
108
SECTION 6.03.
Mutilated, Destroyed, Lost or Stolen
Certificates.
116
SECTION 6.04.
Persons Deemed Owners.
116
SECTION 6.05.
Appointment of Paying Agent.
116
ARTICLE VII
DEFAULT
SECTION 7.01.
Event of Default.
117
SECTION 7.02.
Trustee to Act.
119
SECTION 7.03.
Waiver of Event of Default.
120
SECTION 7.04.
Notification to
Certificateholders.
120
ARTICLE VIII
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION 8.01.
Duties of the Trustee and the Securities
Administrator.
121
SECTION 8.02.
Certain Matters Affecting the Trustee and
the Securities
Administrator.
122
SECTION 8.03.
Trustee and Securities Administrator Not
Liable for Certificates or
Mortgage Loans.
124
SECTION 8.04.
Trustee, Custodian, Master Servicer and
Securities Administrator May
Own Certificates.
125
SECTION 8.05.
Trustee’s and Securities
Administrator’s Fees and Expenses.
125
SECTION 8.06.
Eligibility Requirements for Trustee and
Securities Administrator.
125
SECTION 8.07.
Resignation or Removal of Trustee and
Securities Administrator.
126
SECTION 8.08.
Successor Trustee and Successor
Securities Administrator.
127
SECTION 8.09.
Merger or Consolidation of Trustee or
Securities Administrator.
127
SECTION 8.10.
Appointment of Co-Trustee or Separate
Trustee.
128
SECTION 8.11.
Limitation of Liability.
129
SECTION 8.12.
Trustee May Enforce Claims Without
Possession of Certificates.
129
SECTION 8.13.
Suits for Enforcement.
130
SECTION 8.14.
Waiver of Bond Requirement.
130
SECTION 8.15.
Waiver of Inventory, Accounting and
Appraisal Requirement.
130
SECTION 8.16.
Appointment of Custodians.
130
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01.
REMIC Administration.
131
SECTION 9.02.
Prohibited Transactions and
Activities.
133
ARTICLE X
TERMINATION
SECTION 10.01.
Termination.
133
SECTION 10.02.
Additional Termination
Requirements.
135
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01.
Amendment.
136
SECTION 12.02.
Recordation of Agreement;
Counterparts.
137
SECTION 12.03.
Limitation on Rights of
Certificateholders.
138
SECTION 12.04.
Governing Law; Jurisdiction.
139
SECTION 12.05.
Notices.
139
SECTION 12.06.
Severability of Provisions.
140
SECTION 12.07.
Article and Section
References.
140
SECTION 12.08.
Notice to each Rating Agency.
140
SECTION 12.09.
Further Assurances.
141
SECTION 12.10.
Benefits of Agreement.
141
SECTION 12.11.
Acts of Certificateholders.
142
SECTION 12.12.
Successors and Assigns.
142
SECTION 12.13.
Provision of Information.
142
SECTION 12.14.
Tax Treatment of Class P
Certificate.
143
EXHIBITS AND SCHEDULES
:
Exhibit A-1
Form of Class A Certificate
A-1
Exhibit A-2
Form of Class X Certificate
A-2
Exhibit A-3
Form of Class PO Certificate
A-3
Exhibit B
Form of Class A-R Certificate
B-1
Exhibit C
Form of Subordinate
Certificate
C-1
Exhibit D
Form of Class P Certificate
D-1
Exhibit E
Form of Reverse of the
Certificates
E-1
Exhibit F
Request for Release
F-1
Exhibit G-1
Form of Receipt of Mortgage
Note
G-1-1
Exhibit G-2
Form of Interim Certification of
Trustee
G-2-1
Exhibit G-3
Form of Final Certification of
Trustee
G-3-1
Exhibit H
Form of Lost Note Affidavit
H-1
Exhibit I-1
Form of ERISA Representation Class
A-R
I-1-1
Exhibit I-2
Form of ERISA Representation For
ERISA-Restricted Certificates
I-2-1
Exhibit J-1
Form of Investment Letter Non-Rule
144A
J-1-1
Exhibit J-2
Form of Rule 144A Investment
Letter
J-2-1
Exhibit K
Form of Transferor Certificate
K-1
Exhibit L
Transfer Affidavit for Residual
Certificate Pursuant to
Section 6.02(e)
L-1
Exhibit M
Servicing Agreement
M-1
Exhibit N-1
Form of Transfer Certificate (Restricted
Global Security to
Regulation S Security)
N-1-1
Exhibit N-2
Form of Transfer Certificate (Regulation
S Security to
Restricted Global Security)
N-2-1
Exhibit O
Form of Certificate Insurance
Policy
O-1
Schedule I
Mortgage Loan Schedule
Schedule II
[Reserved]
Schedule III
Yield Maintenance Payments
This Pooling and Servicing Agreement is
dated as of August 1, 2005 (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 ”) and DEUTSCHE BANK NATIONAL TRUST
COMPANY, a national banking association, as trustee (the “
Trustee ”).
PRELIMINARY STATEMENT:
Through this Agreement, the Depositor
intends to cause the issuance and sale of the HarborView Mortgage
Loan Trust 2005-11 Mortgage Loan Pass-Through Certificates, Series
2005-11 (the “ Certificates ”) representing in
the aggregate the entire beneficial ownership of the Trust, the
primary assets of which are the Mortgage Loans (as defined
below).
The Depositor intends to sell the
Certificates to be issued hereunder in multiple classes, which in
the aggregate will evidence the entire beneficial ownership
interest in the Trust Fund created hereunder. The
Certificates will consist of twenty-four classes of certificates,
designated as (i) the Class 1-A-1 Certificates, (ii) the Class 1-A2
Certificates, (iii) the Class 2-A-1 Certificates, (iv) the Class
2-A2A Certificates, (v) the Class 2-A2B Certificates, (vi) the
Class 1-X Certificates, (vii) the Class X Certificates, (viii) the
Class PO Certificates, (ix) the Class 2-PO Certificates, (x) the
Class A-R Certificates, (xi) the Class B-1 Certificates, (xii) the
Class B-2 Certificates, (xiii) the Class B-3 Certificates, (xiv)
the Class B-4 Certificates, (xv) the Class B-5 Certificates, (xvi)
the Class B-6 Certificates, (xvii) the Class 2-B1 Certificates,
(xviii) the Class 2-B2 Certificates, (xix) the Class 2-B3
Certificates, (xx) the Class 2-B4 Certificates, (xxi) the Class
2-B5 Certificates, (xxii) the Class 2-B6 Certificates, (xxiii) the
Class A-R-II Certificates and (xxiv) the Class P
Certificates.
As provided herein, the Trustee shall
elect that the Trust Fund (exclusive of the assets held in the
Basis Risk Reserve Fund, and the Yield Maintenance Account and the
Yield Maintenance Agreements (collectively, the “Excluded
Trust Property”) be treated for federal income tax purposes
as comprising three real estate mortgage investment conduits (each,
a “REMIC” or, in the alternative, the “Lower-Tier
REMIC,” the “Middle-Tier REMIC” and the
“Upper-Tier REMIC”). Each Certificate, other than
the Class A-R and Class A-R-II Certificates, shall represent
ownership of a regular interest in the Upper-Tier REMIC, as
described herein. In addition, (i) the LIBOR Certificates
represent the right to receive payments in respect of Basis Risk
Shortfalls from the Basis Risk Reserve Fund as provided in Section
5.07 and (ii) the Class 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B, and Class 2-A-1C Certificates represent the right to
receive payments in respect of Basis Risk Shortfalls from the Yield
Maintenance Account as provided in Section 4.04. The owners
of the Class X Certificates beneficially own the Basis Risk Reserve
Fund and the Yield Maintenance Account. The Class A-R-II
Certificate represents ownership of the sole class of residual
interest in the Lower-Tier REMIC, and the Class A-R Certificates
represent ownership of the sole class of residual interest in the
Middle-Tier and the Upper-Tier REMICs.
The Lower-Tier REMIC shall hold as assets
all property of the Trust Fund, other than the Excluded Trust
Property and the interests in the Lower-Tier REMIC and the
Middle-Tier REMIC formed hereby. The Middle-Tier REMIC shall
hold as assets the uncertificated Lower-Tier Interests, other than
the Class LT-R Interest. Each such Lower-Tier Interest is
hereby designated as a REMIC regular interest. The Upper-Tier
REMIC shall hold as assets the uncertificated Middle-Tier
Interests, other than the Class MT-R Interest. Each such
Middle-Tier Interest is hereby designated as a REMIC regular
interest.
Lower-Tier REMIC
Interests
The following table specifies the Class
designation, interest rate, and initial principal amount for each
Lower-Tier REMIC Interest:
|
Designation
|
Interest
Rate
|
Initial
Principal Balance
|
Related
group
|
|
LT-Group 1
|
(1)
|
$
222,415,510.10
|
Group 1
|
|
LT-Group 1 SCA
|
(1)
|
$
238,235.96
|
Group 1
|
|
LT-Group 2
|
(2)
|
$
463,586,139.55
|
Group 2
|
|
LT-Group 2 SCA
|
(2)
|
$
496,566.56
|
Group 2
|
|
LT-R
|
(3)
|
(3)
|
N/A
|
(1)
The interest rate with
respect to any Distribution Date (and the related Accrual Period)
for each of these Lower-Tier Interests is a per annum rate equal to
the Group 1 Net WAC.
(2)
The interest rate with
respect to any Distribution Date (and the related Accrual Period)
for each of these Lower-Tier Interests is a per annum rate equal to
the Group 2 Net WAC.
(3)
The LT-R Interest is the
sole class of residual interests in the Lower-Tier REMIC. It
does not have an interest rate or a principal balance.
Ownership of the LT-R Interest is represented by the Class
A-R-II Certificate.
On each Distribution Date, Available
Funds for Loan Group 1 and Loan Group 2 shall be allocated among
the Lower-Tier Interests in the following order of
priority:
(i)
First, concurrently to the LT-Group 1 SCA
and LT-Group 2 SCA Interests as follows:
(a)
to the LT-Group 1 SCA Interest until its
principal balance equals one percent of the Subordinate Component
for Loan Group 1 for the immediately succeeding Distribution
Date;
(b)
to the LT-Group 2 SCA Interest until its
principal balance equals one percent of the Subordinate Component
for Loan Group 2 for the immediately succeeding Distribution
Date;
(c)
to the LT-Group 1 SCA or the LT-Group 2
SCA Interest the amount necessary to cause the ratio of the
principal balance of the LT-Group 1 SCA Interest to the principal
balance of the LT-Group 2 SCA Interest to equal the ratio of the
Subordinate Component for Loan Group 1 for the immediately
succeeding Distribution Date to equal the Subordinate Component for
Loan Group 2 for the immediately succeeding Distribution
Date;
(ii)
Second, concurrently to the LT-Group 1
and the LT-Group 2 Interests until –
(a)
the principal balance of the LT-Group 1
Interest equals the excess of (I) the Pool Balance for Loan Group 1
for the immediately succeeding Distribution Date, over (II) the
principal balance of the LT-Group 1 SCA Interest for such
Distribution Date, after taking into account distributions pursuant
to priority (i) above for such Distribution Date,
and
(b)
the principal balance of the LT-Group 2
Interest equals the excess of (I) the Pool Balance for Loan Group 2
as of for the immediately succeeding Distribution Date, over (II)
the principal balance of the LT-Group 2 SCA Interest for such
Distribution Date, after taking into account distributions pursuant
to priority (i) above for such Distribution Date.
(iii)
Third, to make interest distributions on
the Lower-Tier Interests at the interest rates described above,
provided, however , that any Net Deferred Interest for Loan
Group 1 or Loan Group 2 will be allocated among and increase the
principal balances of the Lower-Tier Interest in the same order and
priority in which principal is distributed pursuant to priorities
(i) and (ii) above.
(iv)
Finally, any remaining amounts to the
LT-R Interest.
On any Distribution Date, after all
distributions of Available Funds from Loan Group 1 and Loan Group 2
on such date, Realized Losses shall be allocated among the
Lower-Tier Interests in the same order of priority in which
principal is distributed among such Lower-Tier Interests pursuant
to priorities (i) and (ii) above.
Middle-Tier REMIC
Interests
|
Designation
|
Interest
Rate
|
Initial
Principal Balance
|
Corresponding Class of Certificates
|
|
MT1-A1A
|
(1)
|
$
252,700,050.00
|
Class 1-A-1A,
Class A-R
|
|
MT1-A1B
|
(1)
|
$
63,175,000.00
|
Class
1-A-1B
|
|
MT1-Q
|
(1)
|
$
303,240,098.00
|
N/A
|
|
MT1-Z
|
(1)
|
$
6,317,501.00
|
N/A
|
|
MT1-Y
|
(1)
|
$
6,317,501.00
|
N/A
|
|
MT2-A1A
|
(2)
|
$
433,200,000.00
|
Class
2-A-1A
|
|
MT2-A1B
|
(2)
|
$
180,500,000.00
|
Class
2-A-1B
|
|
MT2-A1C
|
(2)
|
$
66,000,000.00
|
Class
2-A-1C
|
|
MT2-Q
|
(2)
|
$
693,120,050.00
|
N/A
|
|
MT2-Z
|
(2)
|
$
14,440,000.00
|
N/A
|
|
MT2-Y
|
(2)
|
$
14,440,000.00
|
N/A
|
|
MTB-1
|
(3)
|
$
20,125,000.00
|
Class B-1
|
|
MTB-2
|
(3)
|
$
15,525,000.00
|
Class B-2
|
|
MTB-3
|
(3)
|
$
9,775,000.00
|
Class B-3
|
|
MTB-4
|
(3)
|
$
8,625,000.00
|
Class B-4
|
|
MTB-5
|
(3)
|
$
8,050,000.00
|
Class B-5
|
|
MTB-6
|
(3)
|
$
6,900,000.00
|
Class B-6
|
|
MTB-Q
|
(3)
|
$
107,639,904.06
|
N/A
|
|
MTB-Z
|
(3)
|
$
2,242,498.00
|
N/A
|
|
MTB-Y
|
(3)
|
$
2,242,498.00
|
N/A
|
|
MT-R
|
(4)
|
(4)
|
Class
A-R-II
|
(1)
The interest rate with
respect to any Distribution Date (and the related Accrual Period)
for each of these Middle-Tier Interests is a per annum rate equal
to the weighted average of the interest rates on the LT-Group 1 and
LT-Group 1 SCA Interests for such Distribution Date (the Group 1
Net WAC).
(2)
The interest rate with
respect to any Distribution Date (and the related Accrual Period)
for each of these Middle-Tier Interests is a per annum rate equal
to the weighted average of the interest rates on the LT-Group 2 and
LT-Group 2 SCA Interests for such Distribution Date (the Group 2
Net WAC).
(3)
The interest rate with
respect to any Distribution Date (and the related Accrual Period)
for each of these Middle-Tier Interests is a per annum rate equal
to the weighted average of the interest rates on the LT-Group 1 SCA
and LT-Group 2 SCA Interests for such Distribution Date.
(4)
The MT-R Interest is the
sole class of residual interests in the Middle-Tier REMIC. It
does not have an interest rate or a principal balance.
Ownership of the MT-R Interest is represented by the Class AR
Certificates.
On each Distribution Date, Available
Funds, which shall have been distributed in respect of the
Lower-Tier Interests in the Lower-Tier REMIC, shall be allocated
among the Middle-Tier Interests in the following order of
priority:
(i)
First, to the MT1-Z, MT2-Z, MTB-Z, MT1-Y,
MT2-Y, and MTB-Y Interests in reduction of their principal balances
as follows –
(a)
Concurrently to the MT1-Z, MT2-Z, and
MTB-Z Interests the amount, if any, required to reduce (I) the
principal balance of the MT1-Z Interest to the MT1-Z Target Balance
for such Distribution Date, (II) the principal balance of the MT2-Z
Interest to the MT2-Z Target Balance for such Distribution Date,
and (III) the principal balance of the MTB-Z Interest to the MTB-Z
Target Balance for such Distribution Date;
(b)
Concurrently to the MT1-Y, MT2-Y, and
MTB-Y Interests the amount, if any, required to reduce (I) the
principal balance of the MT1-Y Interest to the MT1-Y Target Balance
for such Distribution Date, (II) the principal balance of the MT2-Y
Interest to the MT2-Y Target Balance for such Distribution Date,
and (III) the principal balance of the MTB-Y Interest to the MTB-Y
Target Balance for such Distribution Date; and
(c)
Concurrently to the MT1-Z, MT2-Z, MTB-Z,
MT1-Y, MT2-Y, and MTB-Y Interests as follows: (I) to the MT1-Z and
MT1-Y Interests, in proportion to their principal balances, after
taking into account distributions pursuant to priorities (a) and
(b) above, until the sum of their principal balances equals 2% of
the aggregate Class Certificate Principal Balance of the Class A-R,
Class 1-A-1A, and Class 1-A-1B Certificates immediately after such
Distribution Date, (II) to the MT2-Z and MT2-Y Interests, in
proportion to their principal balances, after taking into account
distributions pursuant to priorities (a) and (b) above, until the
sum of their principal balances equals 2% of the aggregate Class
Certificate Principal Balance of the Class 2-A-1A, Class 2-A-1B,
and Class 2-A-1C Certificates immediately after such Distribution
Date, and (III) to the MTB-Z and MTB-Y Interests, in proportion to
their principal balances, after taking into account distributions
pursuant to priorities (a) and (b) above, until the sum of their
principal balances equals 2% of the aggregate Class Certificate
Principal Balance of the Class B-1, Class B-2, Class B-3, Class
B-4, Class B-5, and Class B-6 Certificates immediately after such
Distribution Date,
(ii)
Second, concurrently to the MT1-A-1A,
MT1-A-1B, MT2-A-1A, MT2-A-1B, MT2-A-1C, MT-B-1, MT-B-2, MT-B-3.
MT-B-4, MT-B-5, and MT-B-6 Interests until the principal balance of
each such Middle-Tier Interest equals 50% of the Class Certificate
Principal Balance or Balances of the Corresponding Class or Classes
of Certificates for such Middle-Tier Interest immediately after
such Distribution Date;
(iii)
Third, concurrently to the MT1-Q, MT2-Q,
and MTB-Q Interests until (a) the principal balance of the
MT1-Q Interest equals the excess of (I) the aggregate Class
Certificate Principal Balance of the Class 1-A-1A, and Class 1-A-1B
Certificates and the Component Principal Balance of the PO-1
Component immediately after such Distribution Date over (II) the
aggregate of the principal balances of the MT1-A1A, MT1-A1B, MT1-Z,
and MT1-Y Interests after taking into account the distributions
made pursuant to priorities (i) and (ii) above on such Distribution
Date, (b) the principal balance of the MT2-Q Interest equals the
excess of (I) the aggregate Class Certificate Principal Balance of
the Class 2-A-1A, Class 2-A-1B, and Class 2-A-1C Certificates and
the Component Principal Balance of the 2-PO Componenet immediately
after such Distribution Date over (b) the aggregate of the
principal balances of the MT2-A1A, MT2-A1B , MT2-A1C, MT2-Z, and
MT2-Y Interests after taking into account the distributions made
pursuant to priorities (i) and (ii) above on such Distribution
Date, and (c) the principal balance of the MTB-Q Interest equals
the excess of (I) the aggregate Class Certificate Principal Balance
of the Class B-1, Class B-2, Class B-3, Class B-4, Class B-5, and
Class B-6 Certificates immediately after such Distribution Date
over (b) the aggregate of the principal balances of the MTB-1,
MTB-2, MTB-3, MTB-4, MTB-5, MTB-6, MTB-Z, and MTB-Y Interests
after taking into account the distributions made pursuant to
priorities (i) and (ii) above on such Distribution Date;
(iv)
Fourth, remaining Available Funds shall
be applied to interest distributions on the Middle-Tier Interests
in the Middle-Tier REMIC at the interest rates described above,
provided, however , that any Net Deferred Interest will be
allocated among and increase the principal balances of the
Middle-Tier Interests in the same order of priority in which
principal is distributed among such Middle-Tier Interests pursuant
to priorities (i)(c), (ii), and (iii) above.
On any Distribution Date, after all
distributions of Available Funds, which shall have been distributed
or allocated in respect of the Lower-Tier Interests in the
Lower-Tier REMIC, Realized Losses shall be allocated among the
Middle-Tier Interests in the same order of priority in which
principal is distributed among such Middle-Tier Interests pursuant
to priorities (i) through (iii) above.
The Certificates
The following table sets forth (or
describes) the Class designation, Pass-Through Rate, and Original
Class Certificate Principal Balance (or initial Certificate
Notional Balance) for each Class of Certificates comprising
interests in the Trust Fund created hereunder. Each Class of
Certificates, other than the Class A-R and Class A-R-II
Certificates, is hereby designated as representing ownership of
regular interests in the Upper-Tier REMIC.
|
|
Original Class Certificate Principal
Balance or Class Certificate
Notional Balance
|
Pass-Through
Rate
|
|
Class
1-A-1A
|
$
159,064,000.00
|
(1)
|
|
Class
1-A-1B
|
$
39,766,000.00
|
(1)
|
|
Class
2-A-1A
|
$
248,657,000.00
|
(1)
|
|
Class
2-A-1B
|
$
103,606,000.00
|
(1)
|
|
Class
2-A-1C
|
$
62,163,000.00
|
(1)
|
|
Class
X
|
Notional
Amount (2)
|
(1)(2)
|
|
Class
PO
|
$100.00(3)
|
(4)
|
|
Class
A-R
|
$100.00
|
(1)
|
|
Class
B-1
|
$
23,348,000.00
|
(5)
|
|
Class
B-2
|
$
15,794,000.00
|
(5)
|
|
Class
B-3
|
$
12,704,000.00
|
(5)
|
|
Class
B-4
|
$
11,331,000.00
|
(5)
|
|
Class
B-5
|
$
6,180,000.00
|
(5)
|
|
Class
B-6
|
$
4,123,252.17
|
(5)
|
|
Class
P
|
(6)
|
(6)
|
|
Class
A-R-II
|
(7)
|
(7)
|
____________
(1)
Calculated pursuant to
the definition of “Pass-Through Rate.”
(2)
For purposes of the
REMIC provisions, the Class X Certificates shall accrue interest on
a notional balance equal to the sum of the principal balances of
the Middle-Tier Interests (other than the MT-R Interest). For
purposes of the REMIC Provisions, interest shall accrue on the
Class X Certificate at a rate equal to the excess, if any, of (i)
the Adjusted Net WAC over (ii) the Adjusted Middle-Tier WAC. The
Class X Certificates are interest-only certificates and will not be
entitled to distributions of principal.
(3)
The Class PO
Certificates will be deemed for purposes of the distribution of
principal to consist of two components: the PO-1 Component
and the PO-2 Component. The Components are not severable. For
purposes of the REMIC Provisions, the Class PO Certificates shall
accrue interest on a notional balance equal to the sum of the
principal balances of the Middle-Tier Interests (other than the
MT-R Interest). For purposes of the REMIC Provisions,
interest shall accrue on the Class PO Certificate at a rate equal
to the excess, if any, of (i) the Net WAC over (ii) the Adjusted
Middle-Tier Pay Rate. All amounts so accrued shall be
deferred and distributed as principal in respect of the PO-1 and
PO-2 Components.
(4)
The Class PO
Certificates are principal-only certificates and will not be
entitled to distributions of interest.
(5)
Calculated pursuant to
the definition of “Pass-Through Rate,” but adjusted,
for purposes of the REMIC Provisions, to reflect the allocation, if
any, of Subordinate Class Expense Share.
(6)
The Class P Certificate
does not have a principal balance or a pass-through rate and is
entitled to receive the “Class P Distributable
Amount.”
(7)
For purposes of the
REMIC provisions, the Class A-R-II Certificate represents ownership
of the Class LT-R Interest, which is the sole classes of residual
interest in the Lower-Tier REMIC and does not have a principal
balance or a pass-through rate.
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
SECTION 1.01. Defined Terms
.
Whenever used in this Agreement or in the
Preliminary Statement, the following words and phrases, unless the
context otherwise requires, shall have the meanings specified in
this Article. All calculations of interest described herein
shall be made on the basis of an assumed 360-day year consisting of
twelve 30-day months.
“ 1933 Act ”:
The Securities Act of 1933, as amended.
“ Acceptable Successor
Servicer ”: A FHLMC- or FNMA-approved servicer that
is (i) reasonably acceptable to the Master Servicer and (ii)
acceptable to each Rating Agency, as evidenced by a letter from
each such Rating Agency delivered to the Master Servicer and the
Trustee that such entity’s acting as a successor servicer
will not result in a qualification, withdrawal or downgrade of the
then-current rating of any of the Certificates.
“ 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 or the Master
Servicer (except in its capacity as successor to the Servicer), or
(y) as provided in the Servicing Agreement, to the extent
applicable to the Servicer, but in no event below the standard set
forth in clause (x).
“ Account ”: The
Distribution Account or each Servicing Account, as the context
requires.
“ Accrual Period ”:
With respect to each Distribution Date and the Certificates (other
than the LIBOR Certificates) and any Class of Lower-Tier Interests,
the calendar month prior to the month of that Distribution Date.
With respect to each Distribution Date and the LIBOR
Certificates, the period beginning on the immediately preceding
Distribution Date (or Closing Date in the case of the first
Distribution Date) and ending on the date immediately preceding
such Distribution Date. Interest on the LIBOR Certificates
will be calculated on the basis of a 360-day year and the actual
number of days elapsed in the related Accrual Period; in the case
of the other Classes of Certificates (and the Lower-Tier
Interests), interest shall be calculated based on an assumption
that each month has 30 days and each year has 360 days.
“ Adjusted Cap Rate ”:
Any of the Group 1 Adjusted Cap Rate, the Group 2 Adjusted
Cap Rate, the Subordinate Adjusted Cap Rate or the Class X Adjusted
Cap Rate, as applicable.
“ Adjusted Middle-Tier Pay
Rate ”: For any Distribution Date (and the related
Accrual Period), the product of (i) 2 multiplied by (ii) the
weighted average of the interest rates on the MT1-A1A, MT1-A1B,
MT1-Q, MT1-Y, MT1-Z, MT2-A1A, MT2-A1B, MT2-A1C, MT2-Q, MT2-Y,
MT2-Z, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, MTB-6, MTB-Q, MTB-Z, and
MTB-Y Interests, weighted on the basis of their principal balances
as of the first day of the related Accrual Period and computed for
this purpose by (a) first subjecting the interest rate on the
MT1-Q, MT1-Z, MT1-Y, MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and MTB-Z
Interests to a cap of 0.00%, and (b) first subjecting the
interest rate on the MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1B, MT2-A1C1,
MT2-A1C2, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, and MTB-6 Interests to
a cap equal to (I) the Pass-Through Rate for their Corresponding
Class of Certificates (in the case of the Class 1-A-1B and Class
2-A-1C Certificates, increased to reflect the applicable Premium
Rate) multiplied by the quotient of (A) the actual number of days
in the Accrual Period for the Corresponding Class of Certificates
divided by (B) 30 and a floor equal to (II) (a) in the case of the
MT1-A1A and MT1-A1B Interests, the Group 1 Adjusted Net WAC,
(b) in the case of the MT2-A1A, MT2-A1B, MT2-A1C1, and MT2-A1C2
Interests, the Group 2 Adjusted Net WAC, and (c) in the case of the
MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, and MTB-6 Interests, the
Subordinate Adjusted Net WAC.
“ Adjusted Middle-Tier WAC
”: For any Distribution Date (and the related Accrual
Period), the product of (i) 2 multiplied by (ii) the weighted
average of the interest rates on the MT1-A1A, MT1-A1B, MT1-Q,
MT1-Y, MT1-Z, MT2-A1A, MT2-A1B, MT2-A1C1, MT2-A1C2, MT2-Q, MT2-Y,
MT2-Z, MTB-1, MTB-2, MTB-3, MTB-4, MTB-5, MTB-6, MTB-Q, MTB-Z, and
MTB-Y Interests, weighted on the basis of their principal balances
as of the first day of the related Accrual Period and computed for
this purpose by (a) first subjecting the interest rate on the
MT1-Q, MT1-Z, MT1-Y, MT2-Q, MT2-Y, MT2-Z, MTB-Q, MTB-Y, and MTB-Z
Interests to a cap of 0.00%, and (b) first subjecting each of
the MT1-A1A, MT1-A1B, MT2-A1A, MT2-A1B, MT2-A1C1, MT2-A1C2, MTB-1,
MTB-2, MTB-3, MTB-4, MTB-5, and MTB-6 Interests to a cap equal to
the lesser of (I) the Pass-Through Rate for the Corresponding Class
of Certificates (in the case of the Class 1-A-1B and Class 2-A-1C
Certificates, increased to reflect the applicable Premium Rate)
multiplied by the quotient of (A) the actual number of days in the
Accrual Period for the Corresponding Class of Certificates divided
by (B) 30 and (II) (a) in the case of the MT1-A1A and MT1-A1B
Interests, the Group 1 Adjusted Net WAC, (b) in the case of the
MT2-A1A, MT2-A1B, MT2-A1C1, and MT2-A1C2 Interests, the Group 2
Adjusted Net WAC, and (c) in the case of the MTB-1, MTB-2, MTB-3,
MTB-4, MTB-5, and MTB-6 Interests, the Subordinate Adjusted Net
WAC.
“ Adjusted Net WAC ”:
For any Distribution Date and either Loan Group, the excess
of (i) the related Net WAC for such Distribution Date over (ii) the
quotient of (a) product of (I) the Net Deferred Interest with
respect to the related Loan Group for such Distribution Date
multiplied by (II) 12, divided by (b) the Loan Group Balance on the
first day of the related Due Period.
“ 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 pursuant
to Section 7.02.
“ Adverse REMIC Event
”: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets
identified as a REMIC in the Preliminary Statement to this
Agreement, or (ii) imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions, and the tax
imposed under Section 860G(d) on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be
payable from assets held as part of the Trust Fund.
“ Affiliate ”:
With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For
purposes of this definition, “control” means the power
to direct the management and policies of a Person, directly or
indirectly, whether through ownership of voting securities, by
contract or otherwise and “controlling” and
“controlled” shall have meanings correlative to the
foregoing.
“ Allocable Premium Rate
”: For the Class 1-A-1B and Class 2-A-1C Certificates
and the related Group 1 Net WAC Cap or Group 2 Net WAC Cap and
Pass-Through Rate and any Distribution Date, the product of (i)(a)
the product of (x) the Aggregate Premium Amount for such
Distribution Date multiplied by (y) 12 and multiplied by (z) a
fraction the numerator of which is the Class Certificate Principal
Balance of such Class immediately prior to such Distribution Date
and the denominator of which is the aggregate Class Certificate
Principal Balance of the Class 1-A-1B and the Class 2-A-1C
Certificates immediately prior to such Distribution Date, divided
by (b) the Class Certificate Principal Balance of such Class
immediately prior to such Distribution Date, multiplied by (ii) the
quotient obtained by dividing 360 by the actual number of days in
the related Accrual Period for such Class.
“ Aggregate Premium
Amount ”: As to any Distribution Date and each
Class of Insured Certificates, the product of one-twelfth of the
Premium Rate and the aggregate of the Class Certificate Principal
Balances of the Class 1-A-1B and Class 2-A-1C Certificates on the
immediately preceding Distribution Date, or, in the case of the
first Distribution Date, the Closing Date, in each case after
giving effect to distributions of principal made on such
Distribution Date.
“ Aggregate Subordinate
Percentage ”: As to any Distribution Date, the
percentage equivalent of a fraction the numerator of which is the
aggregate of the Class Certificate Principal Balances of the
Classes of Subordinate Certificates and the denominator of which is
the Pool Balance for such Distribution Date.
“ Agreement ”:
This Pooling and Servicing Agreement, dated as of August 1,
2005, as amended, supplemented and otherwise modified from time to
time.
“ Alliance ”: Alliance
Bancorp, and its successors and assigns, in its capacity as
Originator of the Alliance Mortgage Loans.
“ Alliance Mortgage Loans
”: The Mortgage Loans for which Alliance is listed as
“Originator” on the Mortgage Loan Schedule.
“ Alliance Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and Alliance, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Alliance Mortgage Loans.
“ Applicable Credit
Support Percentage ”: As defined in Section
5.01(d).
“ Assignment ”:
As to any Mortgage, an assignment of mortgage, notice of
transfer or equivalent instrument, in recordable form, which is
sufficient, under the laws of the jurisdiction in which the related
Mortgaged Property is located, to reflect or record the sale of
such Mortgage.
“ Available Funds ”:
As to any Distribution Date and any Loan Group, an amount
equal to (i) the sum of (a) the aggregate of the Monthly
Payments received on or prior to the related Determination Date
(excluding Monthly Payments due in future Due Periods but received
by the related Determination Date) in respect of the Mortgage Loans
in that Loan Group, (b) Net Liquidation Proceeds, Insurance
Proceeds, Principal Prepayments (excluding Prepayment Penalty
Amounts), Recoveries and other unscheduled recoveries of principal
and interest in respect of the Mortgage Loans in that Loan Group
received during the related Prepayment Period, (c) the aggregate of
any amounts received in respect of REO Properties for such
Distribution Date in respect of the Mortgage Loans in that Loan
Group, (d) the aggregate of any amounts of Interest Shortfalls
(excluding for such purpose all shortfalls as a result of Relief
Act Reductions) paid by the Servicer pursuant to the Servicing
Agreement and Compensating Interest Payments deposited in the
Distribution Account for that Distribution Date in respect of the
Mortgage Loans in that Loan Group, (e) the aggregate of the
Purchase Prices and Substitution Adjustments deposited in the
Distribution Account during the related Prepayment Period in
respect of the Mortgage Loans in that Loan Group, (f) the
aggregate of any advances in respect of delinquent Monthly Payments
made by the Servicer and Advances made by the Master Servicer for
that Distribution Date in respect of the Mortgage Loans in that
Loan Group, (g) the aggregate of any Advances made by the
Trustee for that Distribution Date pursuant to Section 7.02 hereof
in respect of the Mortgage Loans in that Loan Group and
(h) the Termination Price allocated to such Loan Group on the
Distribution Date on which the Trust is terminated; minus
(ii) the sum of (v) the Expense Fees for that Distribution
Date in respect of the Mortgage Loans in that Loan Group, (w)
amounts in reimbursement for Advances previously made in respect of
the Mortgage Loans in that Loan Group and other amounts as to which
the Servicer, the Securities Administrator, the Master Servicer,
the Trustee and the Custodian are entitled to be reimbursed
pursuant to Section 4.03, (x) the amount payable to the Trustee,
the Master Servicer, the Securities Administrator and the Custodian
pursuant to Sections 3.26(b), 3.27(c) and 8.05 hereof in respect of
the Mortgage Loans in that Loan Group or if not related to a
Mortgage Loan, allocated to each Loan Group on a pro rata basis,
(y) amounts deposited in the Distribution Account in error in
respect of the Mortgage Loans in that Loan Group and (z) and the
portion of the Premium Amount payable on such Distribution Date to
the Certificate Insurer from such Loan Group.
“ Avoided Payments ”:
As defined in the Certificate Insurance Policy.
“ 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 Class
1-A-1A, Class 1-A-1B, Class 2-A-1A, Class 2-A-1B, Class 2-A-1C and
Subordinate Certificates, the “Basis Risk Shortfall”
for such class, if any, will equal the sum of:
(i)
the excess, if any, of the Interest
Distributable Amount that such Class would have been entitled to
receive if the Pass-Through Rate for such Class were calculated
without regard to clause (ii) in the definition thereof, over the
actual Interest Distributable Amount such Class is entitled to
receive for such Distribution Date;
(ii)
any excess described in clause (i) above
remaining unpaid from prior Distribution Dates; and
(iii)
interest for the applicable Accrual
Period on the amount described in clause (ii) above based on the
applicable Pass-Through Rate, determined without regard to clause
(ii) in the definition thereof.
“ Book-Entry Certificates
”: Any of the Certificates that shall be registered in
the name of the Depository or its nominee, the ownership of which
is reflected on the books of the Depository or on the books of a
Person maintaining an account with the Depository (directly, as a
“Depository Participant”, or indirectly, as an indirect
participant in accordance with the rules of the Depository and as
described in Section 6.02 hereof). On the Closing Date, all
Classes of the Certificates other than the Physical Certificates
shall be Book-Entry Certificates.
“ Business Day ”:
Any day other than a Saturday, a Sunday or a day on which
banking or savings institutions in the State of California, 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 is located are authorized or obligated by law
or executive order to be closed.
“ Call Option ”:
The right to terminate this Agreement and the Trust pursuant
to the second paragraph of Section 10.01(a) hereof.
“ Call Option Date ”:
As defined in Section 10.01(a) hereof.
“ Certificate ”:
Any Regular Certificate, Residual Certificate or Class P
Certificate.
“ Certificate Insurance
Policy ”: The Certificate Guaranty Insurance Policy (No.
CA02358A) with respect to the Insured Certificates, and all
endorsements thereto dated the Closing Date, issued by the
Certificate Insurer for the benefit of the Holders of the Insured
Certificates, a form of which is attached hereto as Exhibit
O.
“ Certificate Insurer
”: XL Capital Assurance, Inc., a monoline financial guaranty
insurance company incorporated under the laws of the State of New
York.
“ Certificate Insurer
Default ”: The existence and continuance of any of
the following: (a) a failure by the Certificate Insurer to make a
payment required under the Certificate Insurance Policy in
accordance with its terms; (b) the entry of a decree or order of a
court or agency having jurisdiction in respect of the Certificate
Insurer in an involuntary case under any present or future federal
or state bankruptcy, insolvency or similar law appointing a
conservator or receiver or liquidator or other similar official of
the Certificate Insurer or of any substantial part of its property,
or the entering of an order for the winding up or liquidation of
the affairs of the Certificate Insurer and the continuance of any
such decree or order undischarged or unstayed and in force for a
period of 90 consecutive days; (c) the Certificate Insurer shall
consent to the appointment of a conservator or receiver or
liquidator or other similar official in any insolvency,
readjustment of debt, marshaling of assets and liabilities or
similar proceedings of or relating to the Certificate Insurer or of
or relating to all or substantially all of its property; or (d) the
Certificate Insurer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take
advantage of or otherwise voluntarily commence a case or proceeding
under any applicable bankruptcy, insolvency, reorganization or
other similar statute, make an assignment for the benefit of its
creditors, or voluntarily suspend payment of its
obligations.
“ Certificate Insurer
Reimbursement Amount ”: For any Distribution Date,
the sum of (a) all amounts previously paid by the Certificate
Insurer in respect of Insured Amounts and Avoided Payments for
which the Certificate Insurer has not been reimbursed prior to such
Distribution Date and (b) interest accrued on the foregoing at the
Late Payment Rate from the date the Securities Administrator
received such amounts paid by such Certificate Insurer to such
Distribution Date.
“ Certificate Notional
Balance ”: With respect to each Certificate of
Class X and any date of determination, the product of (i) the Class
Certificate 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 Class P, Class A-R-II and Class X) and any
date of determination, the product of (i) the Class Certificate
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. will act as Certificate
Registrar, on behalf of the Trustee, 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 a Residual Certificate for any purpose hereof.
“ Class ”:
Collectively, Certificates that have the same priority of
payment and bear the same class designation and the form of which
is identical except for variation in the Percentage Interest
evidenced thereby.
“ Class 1-A-1A Certificate
”: Any of the Class 1-A-1A Certificates as designated
on the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit A-1, 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 1-A-1B Certificate
”: Any of the Class 1-A-1B Certificates as designated
on the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit A-1, 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 2-A-1A Certificate
”: Any of the Class 2-A-1A Certificates as designated
on the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit A-1, 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 2-A-1B
Certificate ”: Any of the Class 2-A-1B Certificates
as designated on the face thereof, executed by the Trustee and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-1, 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 2-A-1C Certificate
”: Any of the Class 2-A-1C Certificates as designated
on the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit A-1, 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 A-R Certificate
”: The Class A-R Certificate as designated on the face
thereof executed by the Trustee, and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto
as Exhibit B, evidencing the ownership of the sole class of
“residual interest” in the Upper-Tier REMIC created
hereunder and representing the right to distributions as set forth
herein and therein.
“ Class A-R-II Certificate
”: The Class A-R-II Certificate as designated on the
face thereof executed by the Trustee, and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit B, evidencing the ownership of the sole
class of “residual interest” in the Lower-Tier REMIC
created hereunder and representing the right to distributions as
set forth herein and therein.
“ Class B-1 Certificate
”: Any of the Class B-1 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 B-2 Certificate
”: Any of the Class B-2 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 B-3 Certificate
”: Any of the Class B-3 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 B-4 Certificate
”: Any of the Class B-4 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 B-5 Certificate
”: Any of the Class B-5 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 B-6 Certificate
”: Any of the Class B-6 Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit C, 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 Certificate Notional
Balance ”: With respect to the Class X Certificates
and any Distribution Date, the aggregate Principal Balance of the
Mortgage Loans.
“ Class Certificate Principal
Balance ”: As to any Distribution Date, with
respect to any Class of Certificates (other than the Class X, Class
P, Class PO and Class A-R-II Certificates), the Original Class
Certificate Principal Balance as reduced by the sum of (x) all
amounts actually distributed in respect of principal of that Class
on all prior Distribution Dates, (y) all Realized Losses, if any,
actually allocated to that Class on all prior Distribution Dates
and (z) in the case of the Subordinate Certificates, any applicable
Writedown Amount; provided , however , that (i)
pursuant to Section 5.02, the Class Certificate Principal Balance
of a Class of Certificates shall be increased up to the amount of
Net Deferred Interest allocated to such Class of Certificates on
such Distribution Date and (ii) pursuant to Section 5.08, the Class
Certificate Principal Balance of a Class of Certificates may be
increased up to the amount of Realized Losses previously allocated
to such Class, in the event that there is a Recovery on a related
Mortgage Loan, and the Certificate Principal Balance of any
individual Certificate of such Class will be increased by its
pro rata share of the increase to such Class. With
respect to the Class PO Certificates, the sum of the Component
Principal Balances of the Principal-Only Components as (a) reduced
by the sum of (x) all amounts actually distributed in respect of
principal of such Components on all prior Distribution Dates and
(y) all Realized Losses, if any, actually allocated to such
Components on all prior Distribution Dates; provided ,
however , that (i) pursuant to Section 5.02, the Component
Principal Balance of a Component shall be increased up to the
amount of Net Deferred Interest allocated to the Class X
Certificates based on the related Mortgage Loans on such
Distribution Date and (ii) pursuant to Section 5.08, the Component
Principal Balance of a Component may be increased up to the amount
of Realized Losses previously allocated to such Component, in the
event that there is a Recovery on a related Mortgage Loan, and such
Component will be increased by its pro rata share of the
increase to such Component.
“ Class LT-R Interest
”: As described in the Preliminary
Statement.
“ Class P Certificate
”: The Class P Certificate as designated on the face
thereof, executed by the Trustee and authenticated and delivered by
the Certificate Registrar, substantially in the form annexed hereto
as Exhibit D, evidencing the ownership of the Class P Distributable
Amount. The Class P Certificate represents an interest in the
Trust Fund, but does not represent an interest in any REMIC created
hereunder.
“ Class P Distributable
Amount ”: With respect to each Distribution Date,
all Prepayment Penalty Amounts in respect of Class P Mortgage Loans
received by the Master Servicer for the related Prepayment
Period.
“Class P Mortgage
Loan” : Any
Mortgage Loan with respect to which prepayment penalties are
required to be paid in accordance with the terms of the related
Mortgage Note.
“ Class PO Certificate
”: Any of the Class PO Certificates as designated on
the face thereof, executed by the Trustee and authenticated and
delivered by the Certificate Registrar, substantially in the form
annexed hereto as Exhibit A-3, 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 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
Certificate Principal Balance of such Class immediately before such
Distribution Date and the denominator of which is the aggregate of
the Class Certificate Principal Balances of all Classes of
Certificates and Component Principal Balances immediately before
such Distribution Date.
“ Class X Adjusted Cap
Rate ”: With respect to the Class X Certificates
and any Distribution Date, shall equal the Pass-Through Rate for
the Class X Certificates, computed for this purpose by (i) reducing
the weighted average of the Net Mortgage Rates by a per annum rate
equal to the quotient of (a) the Net Deferred Interest for such
Distribution Date multiplied by 12, and (b) the aggregate Principal
Balance of the Mortgage Loans as of the first day of the month
prior to such Distribution Date (or in the case of the first
Distribution Date, as of the Cut-off Date), and (ii) computing the
interest accrued on the Certificates (other than the Class X
Certificates) by substituting “Adjusted Cap Rate” for
“Net WAC Cap” in the definition of Pass-Through Rate
for each of the Class A-R, Class 1-A-1A, Class 1-A-1B, Class
2-A-1A, Class 2-A-1B, Class 2-A-1C and Subordinate
Certificates.
“ Class X Apportionment Rule
”: Either the Group 1 Class X Apportionment Rule or the
Group 2 Class X Apportionment Rule, as applicable.
“ Class X Certificate
”: Any of the Class X Certificates as designated on the
face thereof, executed by the Trustee 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.
“ Close of Business ”:
As used herein, with respect to any Business Day and
location, 5:00 p.m. at such location.
“ Closing Date ”:
August 31, 2005.
“ Code ”: The
Internal Revenue Code of 1986, as amended.
“ Commercial Capital
”: Commercial Capital Bank, FSB, and its successors and
assigns, in its capacity as Originator of the Commercial Capital
Mortgage Loans.
“ Commercial Capital Mortgage
Loans ”: The Mortgage Loans for which Commercial
Capital is listed as “Originator” on the Mortgage Loan
Schedule.
“ Commercial Capital Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and Commercial Capital, as seller, as the same
may be amended from time to time, and any assignments and
conveyances related to the Commercial Capital Mortgage
Loans.
“ Commission ”:
U.S. Securities and Exchange Commission.
“ ComUnity Lending ”:
ComUnity Lending, Inc., and its successors and assigns, in its
capacity as Originator of the ComUnity Lending Mortgage
Loans.
“ ComUnity Lending Mortgage
Loans ”: The Mortgage Loans for which ComUnity
Lending is listed as “Originator” on the Mortgage Loan
Schedule.
“ ComUnity Lending Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and ComUnity Lending, as seller, as the same
may be amended from time to time, and any assignments and
conveyances related to the ComUnity Lending Mortgage
Loans.
“ Compensating Interest
Payment ”: With respect to any Distribution Date,
an amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all
shortfalls as a result of Relief Act Reductions) required to be
paid by the Servicer pursuant to the Servicing Agreement with
respect to such Distribution Date, exceeds (y) the aggregate amount
actually paid by the Servicer in respect of such shortfalls;
provided, that such amount, to the extent payable by the
Master Servicer, shall not exceed the aggregate Master Servicing
Fee that would be payable to the Master Servicer in respect of such
Distribution Date without giving effect to any Compensating
Interest Payment.
“ Component ”:
Either of the PO-1 Component or the PO-2 Component, as
applicable.
“Component Principal
Balance” : As of
any date of determination, either the PO-1 Component Principal
Balance on such date or the PO-2 Component Principal Balance on
such date as applicable.
“ Cooperative
Corporation ”: The entity that holds title (fee or
an acceptable leasehold estate) to the real property and
improvements constituting the Cooperative Property and which
governs the Cooperative Property, which Cooperative Corporation
must qualify as a Cooperative Housing Corporation under Section 216
of the Code.
“ Cooperative Loan ”:
Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
“ Cooperative Loan Documents
”: As to any Cooperative Loan, (i) the Cooperative
Shares, together with a stock power in blank; (ii) the original or
a copy of the executed Security Agreement; (iii) the original or a
copy of the executed Proprietary Lease and the original assignment
of the Proprietary Lease endorsed in blank; (iv) the original
executed Recognition Agreement and, if available, the original
assignment of the Recognition Agreement (or a blanket assignment of
all Recognition Agreements) endorsed in blank; (v) the executed
UCC-1 financing statement with evidence of recording thereon, which
has been filed in all places required to perfect the security
interest in the Cooperative Shares and the Proprietary Lease; and
(vi) executed UCC amendments (or copies thereof) or other
appropriate UCC financing statements required by state law,
evidencing a complete and unbroken line from the mortgagee to the
Trustee with evidence of recording thereon (or in a form suitable
for recordation).
“ Cooperative Property
”: The real property and improvements owned by the
Cooperative Corporation, that includes the allocation of individual
dwelling units to the holders of the Cooperative Shares of the
Cooperative Corporation.
“ Cooperative Shares
”: Shares issued by a Cooperative
Corporation.
“ Cooperative Unit ”:
A single family dwelling located in a Cooperative
Property.
“ Corporate Trust Office
”: With respect to the Trustee, the principal corporate
trust office at which at any particular time its corporate trust
business in connection with this Agreement shall be administered,
which office at the date of the execution of this instrument is
located at 1761 East St. Andrew Place, Santa Ana, California 92705,
Attention: HarborView 2005-11 (GC0511), 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
Certificate Registrar and presentment of Certificates for
registration of transfer, exchange or final payment, Wells Fargo
Bank, N.A., 6 th Street and Marquette Avenue,
Minneapolis, Minnesota 55479, Attention: Corporate Trust,
HarborView Mortgage Loan Trust 2005-11.
“ Corresponding Class
”: With respect to each class of Lower-Tier Interests,
the Class or Classes of Certificates so designated in the
Preliminary Statement.
“ Custodian ”:
Deutsche Bank National Trust Company, and its successors
acting as custodian of the Mortgage Files.
“ 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
August 1, 2005. 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 the Mortgage Loans in each Loan
Group.
“ 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).
“ Deferred Interest ”:
With respect to each Mortgage Loan and each related Due Date,
will be the excess, if any, of the amount of interest accrued on
such Mortgage Loan from the preceding Due Date to such due date
over the portion of the Monthly Payment allocated to interest for
such Due Date.
“ Deficiency Amount ”:
Means with respect to the Insured Certificates, (a) for any
Distribution Date prior to the Final Distribution Date, the sum of
(1) the excess, if any, of the Monthly Interest Distributable
Amount on the Insured Certificates for such Distribution Date, net
of any Net Interest Shortfalls, Basis Risk Shortfalls and Net
Deferred Interest, over the amount of Available Funds to pay such
net amount on the Insured Certificates on such Distribution Date
and (2) the amount, if any, of any Realized Losses allocable to the
Insured Certificates on such Distribution Date and (b) for the
Final Distribution Date, the sum of (x) the amount set forth in
clause (a)(1) above and (y) the aggregate outstanding Certificate
Principal Balance of the Insured Certificates, after giving effect
to all payments of principal on the Insured Certificates on such
Final Distribution Date, other than pursuant to a claim on the
Certificate Insurance Policy on that Distribution Date.
“ 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 Securities Exchange Act of 1934, as amended. 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 Agreement, on
which the Servicer determines the amount of all funds required to
be remitted to the Master Servicer on the Servicer Remittance Date
with respect to the Mortgage Loans.
“Directly
Operate” : With
respect to any REO Property, the furnishing or rendering of
services to the tenants thereof, the management or operation of
such REO Property, the holding of such REO Property primarily for
sale to customers, the performance of any construction work thereon
or any use of such REO Property in a trade or business conducted by
any REMIC formed hereby other than through an Independent
Contractor; provided, however, that the Trustee (or the Servicer on
behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or the Servicer on
behalf of the Trustee) establishes rental terms, chooses tenants,
enters into or renews leases, deals with taxes and insurance, or
makes decisions as to repairs or capital expenditures with respect
to such REO Property.
“ Disqualified Organization
”: A “disqualified organization” defined in
Section 860E(e)(5) of the Code, or any other Person so designated
by the Trustee based upon an Opinion of Counsel provided to the
Trustee by nationally recognized counsel acceptable to the Trustee
that the holding of an ownership interest in a Residual Certificate
by such Person may cause the Trust Fund or any Person having an
ownership interest in any Class of Certificates (other than such
Person) to incur liability for any federal tax imposed under the
Code that would not otherwise be imposed but for the transfer of an
ownership interest in a Residual Certificate to such
Person.
“ Distribution Account
”: The trust account or accounts created and maintained
by the Master Servicer, on behalf of the Trustee, pursuant to
Section 4.02 hereof in the name of the Trustee and for the benefit
of the Securities Administrator, as Paying Agent for the Trustee,
and the Certificateholders and designated “Distribution
Account, Deutsche Bank National Trust Company, as Trustee, in trust
for the registered Certificateholders of HarborView Mortgage Loan
Trust 2005-11, Mortgage Loan Pass-Through Certificates, Series
2005-11” and which must be an Eligible Account.
“ Distribution Account
Income ”: As to any Distribution Date, any interest
or other investment income earned on funds deposited in the
Distribution Account during the month of such Distribution
Date.
“ Distribution Date ”:
The 19th day of the month, or, if such day is not a Business
Day, the next Business Day commencing in September 2005.
“ Distribution Date
Statement ”: As defined in Section 5.04(a)
hereof.
“ Due Date ”:
With respect to each Mortgage Loan and any Distribution Date,
the first day of the calendar month in which that Distribution Date
occurs on which the Monthly Payment for such Mortgage Loan was due,
exclusive of any days of grace.
“ Due Period ”:
With respect to any Distribution Date, the period commencing
on the second day of the month preceding the month in which that
Distribution Date occurs and ending on the first day of the month
in which that Distribution Date occurs.
“ E-Loan ”: E-Loan,
Inc., and its successors and assigns, in its capacity as Originator
of the E-Loan Mortgage Loans.
“ E-Loan Mortgage Loans
”: The Mortgage Loans for which E-Loan is listed as
“Originator” on the Mortgage Loan Schedule.
“ E-Loan Purchase Agreement
”: The Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of February 1, 2003, between GCFP, as
purchaser, and E-Loan, as seller, as the same may be amended from
time to time, and any assignments and conveyances related to the
E-Loan Mortgage Loans.
“ Eligible Account ”:
Any of
(i)
an account or accounts maintained with a
federal or state chartered depository institution or trust company
the short-term unsecured debt obligations of which (or, in the case
of a depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short
term rating category of each Rating Agency at the time any amounts
are held on deposit therein;
(ii)
an account or accounts the deposits in
which are fully insured by the FDIC (to the limits established by
it), the uninsured deposits in which account are otherwise secured
such that, as evidenced by an Opinion of Counsel delivered to the
Trustee and to each Rating Agency, the Certificateholders will have
a claim with respect to the funds in the account or a perfected
first priority security interest against the collateral (which
shall be limited to Permitted Investments) securing those funds
that is superior to claims of any other depositors or creditors of
the depository institution with which such account is
maintained;
(iii)
a trust account or accounts maintained
with the trust department of a federal or state chartered
depository institution, national banking association or trust
company acting in its fiduciary capacity; or
(iv)
an account otherwise acceptable to each
Rating Agency without reduction or withdrawal of its then current
ratings of the Certificates as evidenced by a letter from each
Rating Agency to the Trustee. Eligible Accounts may bear
interest.
“ Endorsement ”:
As defined in the Certificate Insurance Policy.
“ ERISA ”:
The Employee Retirement Income Security Act of 1974, as
amended.
“ ERISA-Restricted
Certificates ”: The Class B-4, Class B-5, Class
B-6, Class A-R and Class A-R-II Certificates and 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 ”:
Any one 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.
“ Expense Fee ” With
respect to any Mortgage Loan, the sum of (i) the Master Servicing
Fee, (ii) the Servicing Fee with respect to the Servicer and (iii)
with respect to any Lender-Paid Mortgage Insurance Loan, the
Lender-Paid Mortgage Insurance Fee.
“ Fannie Mae ”:
The Federal National Mortgage Association or any successor
thereto.
“ FDIC ”: The
Federal Deposit Insurance Corporation or any successor
thereto.
“ Final Recovery
Determination ”: With respect to any defaulted
Mortgage Loan or any REO Property (other than a Mortgage Loan or
REO Property purchased by the Seller pursuant to or as contemplated
by Sections 2.03 and 10.01), a determination made by the Servicer,
and reported to the Master Servicer, that all Insurance Proceeds,
Liquidation Proceeds and other payments or recoveries which the
Servicer expects to be finally recoverable in respect thereof have
been so recovered.
“ Freddie Mac ”:
The Federal Home Loan Mortgage Corporation or any successor
thereto.
“ Gateway ”: Gateway
Funding Diversified Mortgage Services, LP, and its successors and
assigns, in its capacity as Originator of the Gateway Lending
Mortgage Loans.
“ Gateway Mortgage Loans
”: The Mortgage Loans for which Gateway is listed as
“Originator” on the Mortgage Loan Schedule.
“ Gateway Purchase Agreement
”: The Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of February 1, 2005, between GCFP, as
purchaser, and Gateway, as seller, as the same may be amended from
time to time, and any assignments and conveyances related to the
Gateway Mortgage Loans.
“ GCFP ”:
Greenwich Capital Financial Products, Inc., and its
successors and assigns.
“ GMAC ”: GMAC
Mortgage Corporation, as servicer of the Mortgage Loans as set
forth and as individually defined in the Mortgage Loan Schedule
hereto and its successors and assigns.
“ GMAC Reconstituted Servicing
Agreement ”: The reconstituted servicing agreement
dated as of August 1, 2005 among the Seller and GMAC, and
acknowledged by the Trustee and the Master Servicer.
“ GMAC Servicing Agreement
”: The Master Interim Servicing Agreement, dated as of
March 26, 2003, between GCFP, as owner, and GMAC, as servicer, as
reconstituted by the GMAC Reconstituted Servicing Agreement, as the
same may be amended from time to time, and any assignments and
conveyances related to the 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.
“ Group 1 Adjusted Net WAC
”: With respect to any Distribution Date, the excess of
(i) the Group 1 Net WAC for such Distribution Date over (ii) the
quotient of (a) the product of (I) the Net Deferred Interest for
Loan Group 1 for such Distribution Date multiplied by (II) 12,
divided by (b) the Loan Group Balance for Loan Group 1 at the
beginning of the related Due Period.
“ Group 1 Adjusted Cap Rate
”: For any Distribution Date and the Class 1-A-1A or
Class 1-A-1B Certificates, the Group 1 Net WAC Cap for that
Distribution Date; provided, that the Net WAC referred to in
clause (a)(i) thereof shall be reduced by a per annum rate equal to
(i) the quotient of (a) the product of the Net Deferred Interest,
if any, on the Group 1 Mortgage Loans for the Distribution Date
multiplied by (b) 12, and (ii) the aggregate Stated Principal
Balance of the Group 1 Mortgage Loans as of the first day of the
month before such Distribution Date (or in the case of the first
Distribution Date, as of the Cut-Off Date).
“ Group 1 Class X Apportionment
Rule ”: For purposes of calculating the interest
distributable to the Class X Certificate from Loan Group 1 for any
Accrual Period, an amount equal to the product of (a) the Monthly
Interest Distributable Amount for the Class X Certificates for such
Distribution Date and (b) a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Group 1 Mortgage Loans
and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans, in each case, as of the first
day of the related Due Period.
“ Group 1 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 1 Net WAC ”:
With respect to any Distribution Date, the weighted average
of the Net Loan Rates of the Group 1 Mortgage Loans as of the first
day of the related Due Period (or, in the case of the first
Distribution Date, as of the Cut-Off Date), weighted on the basis
of the related Stated Principal Balances at the beginning of the
related Due Period.
“ Group 1 Net WAC Cap
”: For any Distribution Date and the Class 1-A-1A and
Class 1-A-1B Certificates, the excess, if any, of (a) the product
of (i) the Group 1 Net WAC and (ii) a fraction, the numerator of
which is 30 and the denominator of which is the actual number of
days in the related Accrual Period for such Certificates over (b)
only in the case of the Class 1-A-1B Certificates, the Allocable
Premium Rate for such Class of Certificates.
“ Group 2 Adjusted Cap Rate
”: For any Distribution Date and the Class 2-A-1A,
Class 2-A-1B or Class 2-A-1C Certificates, the Group 2 Net WAC Cap
for that Distribution Date; provided, that the Net WAC
referred to in clause (a)(i) thereof shall be reduced by a per
annum rate equal to (i) the quotient of (a) the product of the Net
Deferred Interest, if any, on the Group 2 Mortgage Loans for the
Distribution Date multiplied by (b) 12, and (ii) the aggregate
Stated Principal Balance of the Group 2 Mortgage Loans as of the
first day of the month before such Distribution Date (or in the
case of the first Distribution Date, as of the Cut-Off
Date).
“ Group 2 Adjusted Net WAC
”: With respect to any Distribution Date, the excess of
(i) the Group 2 Net WAC for such Distribution Date over (ii) the
quotient of (a) the product of (I) the Net Deferred Interest for
Loan Group 2 for such Distribution Date multiplied by (II) 12,
divided by (b) the Loan Group Balance for Loan Group 2 at the
beginning of the related Due Period.
“ Group 2 Class X Apportionment
Rule ”: For purposes of calculating the interest
distributable to the Class X Certificate from Loan Group 2 for any
Accrual Period, an amount equal to the product of (a) the Monthly
Interest Distributable Amount for the Class X Certificates for such
Distribution Date and (b) a fraction, the numerator of which is the
aggregate Stated Principal Balance of the Group 2 Mortgage Loans
and the denominator of which is the aggregate Stated Principal
Balance of all of the Mortgage Loans, in each case, as of the first
day of the related Due Period.
“ Group 2 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 2 Net WAC ”:
With respect to any Distribution Date, the weighted average
of the Net Loan Rates of the Group 2 Mortgage Loans as of the first
day of the related Due Period (or, in the case of the first
Distribution Date, as of the Cut-Off Date), weighted on the basis
of the related Stated Principal Balances at the beginning of the
related Due Period.
“ Group 2 Net WAC Cap
”: For any Distribution Date and the Class 2-A-1A,
Class 2-A-1B and Class 2-A-1C Certificates, the excess, if any, of
(a) the product of (i) the Group 2 Net WAC and (ii) a fraction, the
numerator of which is 30 and the denominator of which is the actual
number of days in the related Accrual Period for such Certificates
over (b) only in the case of the Class 2-A-1C Certificates, the
Allocable Premium Rate for such Class of Certificates.
“ Homefield ”:
Homefield Financial Products, Inc., and its successors and assigns,
in its capacity as Originator of the Homefield Mortgage
Loans.
“ Homefield Mortgage Loans
”: The Mortgage Loans for which Homefield is listed as
“Originator” on the Mortgage Loan Schedule.
“ Homefield Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and Homefield, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Homefield Mortgage Loans.
“ Home Loan ”:
Home Loan Center, Inc., and its successors and assigns, in its
capacity as Originator of the Home Loan Mortgage Loans.
“ Home Loan Mortgage Loans
”: The Mortgage Loans for which Home Loan is listed as
“Originator” on the Mortgage Loan Schedule.
“ Home Loan Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and Home Loan, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Home Loan Mortgage Loans.
“ Indemnification
Agreement ”: The Indemnification Agreement dated as
of the Closing Date among the Depositor, the Seller, Greenwich
Capital Markets, Inc. and the Certificate Insurer, including any
amendments and supplements thereto.
“ Indemnified Persons
”: The Trustee, the Master Servicer, the Depositor, the
Securities Administrator, the Certificate Insurer and the Custodian
and their officers, directors, agents and employees and, with
respect to the Trustee, any separate co-trustee and its officers,
directors, agents and employees.
“ Independent ”:
When used with respect to any specified Person, any such
Person who (a) is in fact independent of the Depositor and its
Affiliates, (b) does not have any direct financial interest in or
any material indirect financial interest in the Depositor or any
Affiliate thereof, and (c) is not connected with the Depositor or
any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing
similar functions; provided, however , that a Person shall
not fail to be Independent of the Depositor or any Affiliate
thereof merely because such Person is the beneficial owner of 1% or
less of any class of securities issued by the Depositor or any
Affiliate thereof.
“Independent
Contractor” :
Either (i) any Person (other than the Master Servicer) that
would be an “independent contractor” with respect to
any REMIC formed hereby within the meaning of Section 856(d)(3) of
the Code if such REMIC were a real estate investment trust (except
that the ownership tests set forth in that section shall be
considered to be met by any Person that owns, directly or
indirectly, 35% or more of any Class of Certificates), so long as
no REMIC formed hereby receives or derives any income from such
Person and provided that the relationship between such Person and
the applicable REMIC is at arm’s length, all within the
meaning of Treasury Regulation Section 1.856-4(b)(5), or (ii) any
other Person (including the Master Servicer) if the Trustee has
received an Opinion of Counsel to the effect that the taking of any
action in respect of any REO Property by such Person, subject to
any conditions therein specified, that is otherwise herein
contemplated to be taken by an Independent Contractor will not
cause such REO Property to cease to qualify as “foreclosure
property” within the meaning of Section 860G(a)(8) of the
Code (determined without regard to the exception applicable for
purposes of Section 860D(a) of the Code), or cause any income
realized in respect of such REO Property to fail to qualify as
Rents from Real Property.
“ Index ”: With
respect to each Mortgage Loan and each Adjustment Date, the index
specified in the related Mortgage Note.
“ Initial Certificate Principal
Balance ”: With respect to any Certificate other
than the Class P, Class A-R-II and Class X Certificates, the amount
designated “Initial Certificate Principal Balance” on
the face thereof.
“ Initial Certificate Notional
Balance ”: With respect to the Class X
Certificates, the amount designated “Initial Certificate
Notional Balance” on the face thereof.
“ Insured Amount ”:
As defined in the Certificate Insurance Policy.
“ Insured Certificates
”: Each of the Class 1-A-1B and Class 2-A-1C
Certificates.
“ Insurance Proceeds
”: With respect to any Mortgage Loan, proceeds of any
title policy, hazard policy or other insurance policy covering a
Mortgage Loan, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with the Servicing
Agreement.
“ Interest Distributable
Amount ”: With respect to any Distribution Date and
each Class of Certificates (other than the Class PO Certificates),
the sum of (i) the Monthly Interest Distributable Amount for
that Class and (ii) the Unpaid Interest Shortfall Amount for
that Class.
“ Interest Shortfall
”: With respect to any Distribution Date and each
Mortgage Loan that during the related Prepayment Period was the
subject of a Principal Prepayment or a reduction of its Monthly
Payment under the Relief Act, an amount determined as
follows:
(a)
Principal Prepayments in part received
during the relevant Prepayment Period : the difference between (i) one month’s
interest at the applicable Net Loan Rate on the amount of such
prepayment and (ii) the amount of interest for the calendar month
of such prepayment (adjusted to the applicable Net Loan Rate)
actually received with respect to such prepayment at the time of
such prepayment; and
(b)
Principal Prepayments in full received
during the relevant Prepayment Period : the difference between (i) one month’s
interest at the applicable Net Loan Rate on the Stated Principal
Balance of such Mortgage Loan immediately prior to such prepayment
and (ii) the amount of interest for the calendar month of such
prepayment (adjusted to the applicable Net Loan Rate) actually
received with respect to such prepayment at the time of such
prepayment; and
(c)
the amount of any Relief Act Reductions
for such Distribution Date.
“ Late Payment Rate ”:
The meaning given to such term in the Certificate Insurance
Policy.
“ Latest Possible Maturity
Date ”: As determined as of the Cut-Off Date, the
Distribution Date following the third anniversary of the scheduled
maturity date of the Mortgage Loan having the latest scheduled
maturity date as of the Cut-Off Date.
“ Lender-Paid Mortgage Insurance
Loan ”: Each Mortgage Loan identified as such in
the Mortgage Loan Schedule.
“ Lender-Paid Mortgage Insurance
Fee ”: As to any Distribution Date and each Lender
Paid Mortgage Insurance Mortgage Loan, an amount equal to the
product of the Lender-Paid Mortgage Insurance Fee Rate and the
outstanding Principal Balance of such Mortgage Loan as of the first
day of the related Due Period.
“ Lender-Paid Mortgage Insurance
Fee Rate ”: For each Lender-Paid Mortgage Insurance
Loan and any Distribution Date, the per annum rate required to be
paid in connection with the related lender-paid mortgage insurance
policy for such Mortgage Loan on such Distribution Date.
“LIBOR”
: With respect to each Accrual
Period, a per annum rate determined on the LIBOR Determination Date
in the following manner by the 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 the
related LIBOR Determination Date.
(a)
If on such a LIBOR Determination Date,
the BBA’s Interest Settlement Rate does not appear on the
Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities
Administrator will obtain such rate from Reuters’ “page
LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination
Date, LIBOR for such date will be the most recently published
Interest Settlement Rate. In the event that the BBA no longer
sets an Interest Settlement Rate, the rate for such date will be
determined on the basis of the rates at which one-month U.S. dollar
deposits are offered by the Reference Banks at approximately 11:00
am (London time) on such date to prime banks in the London
interbank market. In such event, the Securities Administrator
will request the principal London office of each of the Reference
Banks to provide a quotation of its rate. If at least two
such quotations are provided, the rate for that date will be the
arithmetic mean of the quotations (rounded upwards if necessary to
the nearest whole multiple of 1/16%). If fewer than two
quotations are provided as requested, the rate for that date will
be the arithmetic mean of the rates quoted by major banks in New
York City, selected by the Securities Administrator (after
consultation with the Depositor), at approximately 11:00 a.m. (New
York City time) on such date for one-month U.S. dollar loan to
leading European banks.
(b)
The establishment of LIBOR by the
Securities Administrator and the Securities Administrator’s
subsequent calculation of the Pass-Through Rate applicable to the
LIBOR Certificates for the relevant Accrual Period, in the absence
of manifest error, will be final and binding.
“ LIBOR Business Day
”: Any day on which banks in London, England and The
City of New York are open and conducting transactions in foreign
currency and exchange.
“ LIBOR Certificates
”: The Class 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B, Class 2-A-1C, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates.
“ LIBOR Determination Date
”: The second LIBOR Business Day immediately preceding
the commencement of each Accrual Period for the LIBOR
Certificates.
“ Liquidated Mortgage Loan
”: As to any Distribution Date, any Mortgage Loan in
respect of which the Servicer has determined, in accordance with
the servicing procedures specified herein, as of the end of the
related Prepayment Period, that all Liquidation Proceeds that it
expects to recover with respect to the liquidation of such Mortgage
Loan or disposition of the related REO Property have been
recovered.
“ Liquidation Event ”:
With respect to any Mortgage Loan, any of the following
events: (i) such Mortgage Loan is paid in full; (ii) a Final
Recovery Determination is made as to such Mortgage Loan; or (iii)
such Mortgage Loan is removed from the Trust Fund by reason of its
being purchased, sold or replaced pursuant to or as contemplated
hereunder. With respect to any REO Property, either of the
following events: (i) a Final Recovery Determination is made as to
such REO Property; or (ii) such REO Property is removed from the
Trust Fund by reason of its being sold or purchased pursuant to
Section 10.01 hereof or the applicable provisions of the Servicing
Agreement.
“ Liquidation Expenses
”: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the
Master Servicer or the Servicer such expenses including (a)
property protection expenses, (b) property sales expenses, (c)
foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or
incurred in connection with liquidation.
“ Liquidation Proceeds
”: With respect to any Mortgage Loan, the amount (other
than amounts received in respect of the rental of any REO Property
prior to REO Disposition) received by the Servicer as proceeds from
the liquidation of such Mortgage Loan, as determined in accordance
with the applicable provisions of the Servicing Agreement, other
than Recoveries; provided that with respect to any Mortgage
Loan or REO Property repurchased, substituted or sold pursuant to
or as contemplated hereunder, or pursuant to the applicable
provisions of the Servicing Agreement, “Liquidation
Proceeds” shall also include amounts realized in connection
with such repurchase, substitution or sale.
“ Loan Group ”:
Either of Loan Group 1 or Loan Group 2, as the context
requires.
“ Loan Group Balance
”: As to each Loan Group, the aggregate of the Stated
Principal Balances of the Mortgage Loans in such Loan Group that
were Outstanding Mortgage Loans at the time of
determination.
“ Loan Group 1 ”:
At any time, the Group 1 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 2 ”:
At any time, the Group 2 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Center ”: Loan
Center of California, Inc., and its successors and assigns, in its
capacity as Originator of the Loan Center Mortgage
Loans.
“ Loan Center Mortgage Loans
”: The Mortgage Loans for which Loan Center is listed
as “Originator” on the Mortgage Loan
Schedule.
“ Loan Center Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and Loan Center, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Loan Center Mortgage Loans.
“ Loan Link ”:
Loan Link Financial Services, and its successors and assigns, in
its capacity as Originator of the Loan Link Mortgage
Loans.
“ Loan Link Mortgage Loans
”: The Mortgage Loans for which Loan Link is listed as
“Originator” on the Mortgage Loan Schedule.
“ Loan Link Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of February 1, 2005, between
GCFP, as purchaser, and Loan Link, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Loan Link Mortgage Loans.
“ Loan Rate ”:
With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage
Note.
“ Loan-to-Value Ratio
”: With respect to each Mortgage Loan and any date of
determination, a fraction, expressed as a percentage, the numerator
of which is the Principal Balance of the Mortgage Loan at such date
of determination and the denominator of which is the Value of the
related Mortgaged Property.
“ Lost Note Affidavit
”: With respect to any Mortgage Loan as to which the
original Mortgage Note has been permanently lost or destroyed and
has not been replaced, an affidavit from the Seller certifying that
the original Mortgage Note has been lost, misplaced or destroyed
(together with a copy of the related Mortgage Note and indemnifying
the Trust against any loss, cost or liability resulting from the
failure to deliver the original Mortgage Note) in the form of
Exhibit H hereto.
“ Lower-Tier Interest
”: Any one of the interests in the Lower-Tier REMIC, as
described in the Preliminary Statement.
“ Lower-Tier REMIC ”:
As described in the Preliminary Statement.
“ Majority
Certificateholders ”: The Holders of Certificates
evidencing at least 51% of the Voting Rights.
“ Margin ”: On
each Distribution Date on or prior to the Call Option Date, (i)
with respect to the Class 1-A-1A Certificates, 0.320% per annum,
and on each Distribution Date after the Call Option Date, 0.640%
per annum, (ii) with respect to the Class 1-A-1B Certificates,
0.330% per annum, and on each Distribution Date after the Call
Option Date, 0.660% per annum, (iii) with respect to the Class
2-A-1A Certificates, 0.310% per annum, and on each Distribution
Date after the Call Option Date, 0.620% per annum, (iv) with
respect to the Class 2-A-1B Certificates, 0.380% per annum, and on
each Distribution Date after the Call Option Date, 0.760% per
annum, (v) with respect to the Class 2-A-1C Certificates, 0.320%
per annum, and on each Distribution Date after the Call Option
Date, 0.640% per annum, (vi) with respect to the Class B-1
Certificates, 0.630% per annum, and on each Distribution Date after
the Call Option Date, 0.945% per annum, (vii) with respect to the
Class B-2 Certificates, 0.950% per annum, and on each Distribution
Date after the Call Option Date, 1.425% per annum, (viii) with
respect to the Class B-3 Certificates, 1.650% per annum, and on
each Distribution Date after the Call Option Date, 2.475% per
annum, and (ix) with respect to the Class B-4, Class B-5 and Class
B-6 Certificates, 1.750% per annum, and on each Distribution Date
after the Call Option Date, 2.625% per annum.
“ 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. The Master Servicing Fee for
any Mortgage Loan shall be payable in respect of any Distribution
Date solely from the interest portion of the Monthly Payment or
other payment or recovery with respect to such Mortgage
Loan.
“Master Servicing Fee
Rate ”: 0.0100%
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.
“ Metrocities ”:
Metrocities Mortgage LLC, and its successors and assigns, in its
capacity as Originator of the Metrocities Mortgage
Loans.
“ Metrocities Mortgage Loans
”: The Mortgage Loans for which Metrocities is listed
as “Originator” on the Mortgage Loan
Schedule.
“ Metrocities Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of February 1, 2004, between
GCFP, as purchaser, and Metrocities, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the Metrocities Mortgage Loans.
“ Middle-Tier Interest
”: Any one of the interests in the Middle-Tier REMIC,
as described in the Preliminary Statement.
“ Middle-Tier REMIC ”:
As described in the Preliminary Statement.
“ MIN ”: The
Mortgage Identification Number for any MERS Mortgage
Loan.
“ MOM Loan ”:
Any Mortgage Loan as to which MERS is acting as mortgagee,
solely as nominee for the originator of such Mortgage Loan and its
successors and assigns.
“ Monthly Interest Distributable
Amount ”: With respect to each Class of
Certificates (other than the Class P, Class A-R-II and Class PO
Certificates) and any Distribution Date, the amount of interest
accrued during the related Accrual Period at the lesser of the
related Adjusted Cap Rate and the related Pass-Through Rate on the
Class Certificate Principal Balance or Class Certificate Notional
Balance, as applicable, immediately prior to that Distribution
Date; provided, however , that for purposes of compliance
with the REMIC Provisions, (A) the Monthly Interest Distributable
Amount for each Class of Subordinate Certificates shall be
calculated by reducing the related Pass-Through Rate by a per annum
rate equal to (i) 12 times the Subordinate Class Expense Share for
such Class divided by (ii) the Class Certificate Principal
Balance of such Class as of the beginning of the related Accrual
Period and (B) such Class shall be deemed to bear interest at such
Pass-Through Rate as so reduced for federal income tax purposes;
provided, further , such Monthly Interest Distributable
Amount shall be reduced if the Pass-Through Rate applicable to such
Class for the related Accrual Period exceeds the Adjusted Cap Rate
applicable to such Class for such Distribution Date, subject to the
allocation priority set forth in Section 5.02 herein.
“ Monthly Payment ”:
With respect to any Mortgage Loan, the scheduled monthly
payment of principal and interest on such Mortgage Loan that is
payable by the related Mortgagor from time to time under the
related Mortgage Note, determined, for the purposes of this
Agreement: (a) after giving effect to any reduction in the amount
of interest collectible from the related Mortgagor pursuant to the
Relief Act; (b) without giving effect to any extension granted or
agreed to by the Servicer pursuant to the applicable provisions of
the Servicing Agreement; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when
due.
“ Moody’s ”:
Moody’s Investors Service, Inc. and its
successors.
“ Mortgage ”:
The mortgage, deed of trust or other instrument creating a
first lien on, or first priority security interest in, a Mortgaged
Property securing a Mortgage Note.
“ Mortgage File ”:
The mortgage documents listed in Section 2.01 hereof
pertaining to a particular Mortgage Loan and any additional
documents required to be added to the Mortgage File pursuant to
this Agreement.
“ Mortgage Loan ”:
Each mortgage loan (including Cooperative Loans) transferred
and assigned to the Trustee pursuant to Section 2.01 or Section
2.03(d) hereof as from time to time held as a part of the Trust
Fund, the Mortgage Loans so held being identified in the Mortgage
Loan Schedule.
“ Mortgage Loan Purchase
Agreement ”: The Mortgage Loan Purchase Agreement
between the Seller and the Depositor, dated as of August 1, 2005,
regarding the transfer of the Mortgage Loans by the Seller to or at
the direction of the Depositor.
“ Mortgage Loan Schedule
”: As of any date, the list of Mortgage Loans included
in the Trust Fund on such date, attached hereto as Schedule I.
The Mortgage Loan Schedule shall be prepared by the Seller
and shall set forth the following information with respect to each
Mortgage Loan:
(i)
the Mortgage Loan identifying
number;
(ii)
the Mortgagor’s name;
(iii)
the street address of the Mortgaged
Property including the state and five-digit ZIP code;
(iv)
a code indicating whether the Mortgaged
Property was represented by the borrower, at the time of
origination, as being owner-occupied;
(v)
a code indicating whether the Residential
Dwelling constituting the Mortgaged Property is (a) a detached
single family dwelling, (b) a dwelling in a planned unit
development, (c) a condominium unit, (d) a two- to four-unit
residential property, (e) a townhouse or (f) other type of
Residential Dwelling;
(vi)
if the related Mortgage Note permits the
borrower to make Monthly Payments of interest only for a specified
period of time, (a) the original number of such specified Monthly
Payments and (b) the remaining number of such Monthly Payments as
of the Cut-Off Date;
(vii)
the original months to
maturity;
(viii)
the stated remaining months to maturity
from the Cut-Off Date based on the original amortization
schedule;
(ix)
the Loan-to-Value Ratio at
origination;
(x)
the Loan Rate in effect immediately
following the Cut-Off Date;
(xi)
the date on which the first Monthly
Payment is or was due on the Mortgage Loan;
(xii)
the stated maturity date;
(xiii)
the Servicing Fee Rate, if
any;
(xiv)
the last Due Date on which a Monthly
Payment was actually applied to the unpaid Stated Principal
Balance;
(xv)
the original principal balance of the
Mortgage Loan;
(xvi)
the Stated Principal Balance of the
Mortgage Loan on the Cut-Off Date and a code indicating the
purpose of the Mortgage Loan (i.e., purchase financing, rate/term
refinancing, cash-out refinancing);
(xvii)
the Index and Gross Margin specified in
related Mortgage Note;
(xviii)
the next Adjustment Date, if
applicable;
(xix)
the Maximum Loan Rate, if
applicable;
(xx)
the Value of the Mortgaged
Property;
(xxi)
the sale price of the Mortgaged Property,
if applicable;
(xxii)
the product code;
(xxiii)
whether the Mortgage Loan is a
Lender-Paid Mortgage Insurance Loan;
(xxiv)
the Servicer that is servicing each
Mortgage Loan and the Originator of each Mortgage Loan;
(xxv)
the respective Loan Group;
(xxvi)
[reserved]; and
(xxvii)
whether the Mortgage Loan is a Class P
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 shall not disclose
such information; provided that, notwithstanding anything herein to
the contrary, the foregoing shall not be construed to prohibit (i)
disclosure of any and all information that is or becomes publicly
known, or information obtained by Trustee from sources other than
the other parties hereto, (ii) disclosure of any and all
information (A) if required to do so by any applicable, law, rule
or regulation, (B) to any government agency or regulatory body
having or claiming authority to regulate or oversee any respects of
Trustee’s business or that of its affiliates, (C) pursuant to
any subpoena, civil investigative demand or similar demand or
request of any court, regulatory authority, arbitrator or
arbitration to which Trustee or any affiliate or an officer,
director, employer or shareholder thereof is a party or (D) to any
affiliate, independent or internal auditor, agent, employee or
attorney of Trustee having a need to know the same, provided that
Trustee advises such recipient of the confidential nature of the
information being disclosed, or (iii) any other disclosure
authorized by the Depositor.
The Mortgage Loan Schedule, as in effect
from time to time, shall also set forth the following information
with respect to the Mortgage Loans in the aggregate and by Loan
Group as of the Cut-Off Date: (1) the number of Mortgage
Loans; (2) the current Principal Balance of the Mortgage
Loans; (3) the weighted average Loan Rate of the Mortgage
Loans; and (4) the weighted average remaining months to
maturity of the Mortgage Loans. The Mortgage Loan Schedule
shall be amended from time to time by the Seller in accordance with
the provisions of this Agreement.
“ Mortgage Note ”:
The original executed note or other evidence of indebtedness
evidencing the indebtedness of a Mortgagor under a Mortgage
Loan.
“ Mortgaged Property
”: Either of (x) the fee simple or leasehold interest
in real property, together with improvements thereto including any
exterior improvements to be completed within 120 days of
disbursement of the related Mortgage Loan proceeds, or (y) in the
case of a Cooperative Loan, the related Cooperative Shares and
Proprietary Lease, securing the indebtedness of the Mortgagor under
the related Mortgage Loan.
“ Mortgagor ”:
The obligor on a Mortgage Note.
“ MT1-Y Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the product of (I) the principal balance of
the MT1-Z Interest immediately preceding such Distribution Date
multiplied by (II) the Group 1 Net WAC for such Distribution Date
multiplied by (III) two, divided by (b) the Group 1 Adjusted Net
WAC for such Distribution Date, over (ii) the principal balance of
the MT1-Z Interest immediately preceding such Distribution
Date.
“ MT1-Z Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the principal balance of the MT1-Y Interest
immediately preceding such Distribution Date divided by (b) the
difference between (I) 100% minus (II) the quotient of (A) the
Group 1 Adjusted Net WAC for such Distribution Date divided by (B)
the product of (1) two multiplied by (2) the Group 1 Net WAC for
such Distribution Date, over (ii) the principal balance of the
MT1-Y Interest immediately preceding such Distribution
Date.
“ MT2-Y Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the product of (I) the principal balance of
the MT2-Z Interest immediately preceding such Distribution Date
multiplied by (II) the Group 2 Net WAC for such Distribution Date
multiplied by (III) two, divided by (b) the Group 2 Adjusted Net
WAC for such Distribution Date, over (ii) the principal balance of
the MT2-Z Interest immediately preceding such Distribution
Date.
“ MT2-Z Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the principal balance of the MT2-Y Interest
immediately preceding such Distribution Date divided by (b) the
difference between (I) 100% minus (II) the quotient of (A) the
Group 2 Adjusted Net WAC for such Distribution Date divided by (B)
the product of (1) two multiplied by (2) the Group 2 Net WAC for
such Distribution Date, over (ii) the principal balance of the
MT2-Y Interest immediately preceding such Distribution
Date.
“ MTB-Y Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the product of (I) the principal balance of
the MTB-Z Interest immediately preceding such Distribution Date
multiplied by (II) the Subordinate Net WAC for such Distribution
Date multiplied by (III) two, divided by (b) the Subordinate
Adjusted Net WAC for such Distribution Date, over (ii) the
principal balance of the MTB-Z Interest immediately preceding such
Distribution Date.
“ MTB-Z Target Balance
”: For any Distribution Date, the excess, if any, of
(i) the quotient of (a) the principal balance of the MTB-Y Interest
immediately preceding such Distribution Date divided by (b) the
difference between (I) 100% minus (II) the quotient of (A) the
Subordinate Adjusted Net WAC for such Distribution Date divided by
(B) the product of (1) two multiplied by (2) the Subordinate Net
WAC for such Distribution Date, over (ii) the principal balance of
the MTB-Y Interest immediately preceding such Distribution
Date.
“ Net Deferred Interest
”: With respect to each Loan Group and any Distribution
Date, the greater of (i) the excess, if any, of the Deferred
Interest for the related Due Date over the aggregate amount of any
principal prepayments in part or in full received during the
related Prepayment Period and (ii) zero.
“ Net Interest Shortfall
”: With respect to any Distribution Date, the excess of
Interest Shortfalls, if any, for such Distribution Date over the
sum of (i) Interest Shortfalls paid by the Servicer under the
Servicing Agreement 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 fees received and retained in
connection with the liquidation of such Mortgage Loan or Mortgaged
Property.
“ Net Loan Rate ”:
With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of
interest equal to the then applicable Loan Rate for such Mortgage
Loan minus the related Servicing Fee Rate, the Master Servicing Fee
Rate and, if applicable, the Lender Paid Mortgage Insurance
Rate.
“ Net Maximum Loan Rate
”: With respect to any Mortgage Loan (or the related
REO Property), as of any date of determination, a per annum rate of
interest equal to the then applicable Maximum Loan Rate for such
Mortgage Loan minus the related Servicing Fee Rate.
“ Net Maximum Rate Cap
”: For any Distribution Date and the Subordinate
Certificates, the Subordinate Net WAC Cap, computed for this
purpose only by assuming that each Mortgage Loan accrued interest
at its Net Maximum Loan Rate.
“ Net Realized Losses
”: For any Class of Certificates and any Distribution
Date, the excess of (i) the amount of Realized Losses previously
allocated to that Class over (ii) the amount of any increases to
the Class Certificate Principal Balance of that Class pursuant to
Section 5.08 due to Recoveries.
“ Net WAC ”:
With respect to any Distribution Date and each Loan Group,
the weighted average of the Net Loan Rates of the Mortgage Loans
related to such Loan Group as of the first day of the related Due
Period (or, in the case of the first Distribution Date, as of the
Cut-Off Date), weighted on the basis of the related Stated
Principal Balances at the beginning of the related Due
Period.
“ Nonrecoverable ”:
A determination by the Master Servicer or the Servicer in
respect of a delinquent Mortgage Loan that if it were to make an
Advance or an advance of a delinquent Monthly Payment,
respectively, in respect thereof, such amount would not be
recoverable from any collections or other recoveries (including
Liquidation Proceeds) on such Mortgage Loan.
“ Notice ”: As
defined in the Certificate Insurance Policy.
“ Officers’
Certificate ”: A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a
vice president (however denominated), or by the Treasurer, the
Secretary, or one of the assistant treasurers or assistant
secretaries of the Seller, the Master Servicer or the Depositor, as
applicable.
“ One-Month MTA ”:
The twelve-month average yields on United States Treasury
securities adjusted to a constant maturity of one year as published
by the Federal Reserve Board in Statistical Release
H.15(519).
“ One-Month MTA Indexed
”: Indicates a Mortgage Loan that has an adjustable
Loan Rate calculated on the basis of the MTA index.
“ Opinion of Counsel
”: A written opinion of counsel, who may, without
limitation, be a salaried counsel for the Depositor, the Seller,
the Master Servicer or the Securities Administrator, acceptable to
the Trustee, except that any opinion of counsel relating to (a) the
qualification of any REMIC created hereunder as a REMIC or (b)
compliance with the REMIC Provisions must be an opinion of
Independent counsel.
“ Original Applicable Credit
Support Percentage ”: With respect to each Class of
Subordinate Certificates, the corresponding percentage set forth
below opposite its Class designation:
|
Class B-1
|
10.70%
|
|
Class B-2
|
7.30%
|
|
Class B-3
|
5.00%
|
|
Class B-4
|
3.15%
|
|
Class B-5
|
1.50%
|
|
Class B-6
|
0.60%
|
“ Original Certificate Notional
Balance ”: With respect to the Class X Certificates,
$686,736,452.17.
“ 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 Certificate
Principal Balance ”: With respect to each Class of
Certificates, other than the Class X, Class P and Class A-R-II
Certificates, the corresponding aggregate amount set forth opposite
the Class designation of such Class in the Preliminary
Statement.
“ Original Subordinated
Principal Balance ”: The aggregate of the Original
Class Certificate Principal Balances of the Classes of Subordinate
Certificates.
“ Originator ”:
Each of Alliance, Commercial Capital, ComUnity Lending,
E-Loan, Gateway, Home Loan, Homefield, Loan Center, Loan Link,
Metrocities, Paul Financial, Plaza, PMC, Secured Bankers and Sierra
Pacific, as applicable.
“ OTS ”: The
Office of Thrift Supervision.
“ Outstanding Mortgage Loan
”: As of any Due Date, a Mortgage Loan with a Stated
Principal Balance greater than zero, that was not the subject of a
prepayment in full prior to such Due Date and that did not become a
Liquidated Mortgage Loan prior to such Due Date.
“ Ownership Interest
”: As to any Certificate, any ownership or security
interest in such Certificate, including any interest in such
Certificate as the Holder thereof and any other interest therein,
whether direct or indirect, legal or beneficial, as owner or as
pledgee.
“ Pass-Through Rate ”:
With respect to each Class of Certificates (other than the
Class PO, 2-PO and Class A-R-II Certificates) and any Distribution
Date, the rate set forth below:
(i)
The Pass-Through Rate for the Class
1-A-1A Certificates shall be equal to the least of (a) LIBOR plus
the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) 11.00% per annum;
(ii)
The Pass-Through Rate for the Class
1-A-1B Certificates shall be equal to the least of (a) LIBOR plus
the applicable Margin, (b) the Group 1 Net WAC Cap for that
Distribution Date and (c) 11.00% per annum;
(iii)
The Pass-Through Rate for the Class A-R
Certificates shall be equal to the Net WAC of the Group 1 Mortgage
Loans for that Distribution Date;
(iv)
The Pass-Through Rate for the Class
2-A-1A Certificates shall be equal to the least of (a) LIBOR plus
the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) 11.00% per annum;
(v)
The Pass-Through Rate for the Class
2-A-1B Certificates shall be equal to the least of (a) LIBOR plus
the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) 11.00% per annum;
(vi)
The Pass-Through Rate for the Class
2-A-1C Certificates shall be equal to the least of (a) LIBOR plus
the applicable Margin, (b) the Group 2 Net WAC Cap for that
Distribution Date and (c) 11.00% per annum;
(vii)
The Pass-Through Rate for the Class X
Certificates shall be equal to the excess, if any, of (i) the Net
WAC of the Mortgage Loans over (ii) the product of (A) the sum of
(i) the amount of interest accrued for the related Accrual Period
on the Certificates (other than the Class X Certificates) at the
applicable Pass-Through Rate plus (ii) the Aggregate Premium Amount
due to the Certificate Insurer for that Distribution Date and (B)
12, divided by the aggregate Principal Balance of the Mortgage
Loans on such Distribution Date; and
(viii)
The Pass-Through Rate for the Class B-1,
Class B-2, Class B-3, Class B-4, Class B-5 and Class B-6
Certificates shall be equal to the least of (a) LIBOR plus the
applicable Margin, (b) the Subordinate Net WAC Cap for that
Distribution Date and (c) the Net Maximum Rate Cap for that
Distribution Date.
“ Paul Financial ”:
Paul Financial, LLC, and its successors and assigns, in its
capacity as Originator of the Paul Financial Mortgage
Loans.
“ Paul Financial Mortgage
Loans ”: The Mortgage Loans for which Paul
Financial is listed as “Originator” on the Mortgage
Loan Schedule.
“ Paul Financial Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of January 1, 2004, between
GCFP, as purchaser, and Paul Financial, as seller, as the same may
be amended from time to time, and any assignments and conveyances
related to the Paul Financial Mortgage Loans.
“ Paying Agent ”:
Any paying agent appointed pursuant to Section 6.05 hereof.
The initial Paying Agent shall be Wells Fargo Bank, N.A., for
so long as it is acting as Securities Administrator under this
Agreement.
“ Percentage Interest
”: With respect to any Certificate other than a Class
P, Class A-R or Class A-R-II Certificate, a fraction, expressed as
a percentage, the numerator of which is the Initial Certificate
Principal Balance or Initial Certificate Notional Balance, as
applicable, represented by such Certificate and the denominator of
which is the Original Class Certificate Principal Balance or
Original Class Certificate Notional Balance, as applicable, of the
related Class. With respect to the Class P, Class A-R and
Class A-R-II Certificates, 100%.
“ Permitted Investments
”: Any one or more of the following obligations or
securities acquired at a purchase price of not greater than par,
regardless of whether issued or managed by the Depositor, the
Trustee, the Master Servicer or any of their respective Affiliates
or for which an Affiliate of the Trustee serves as an
advisor:
(i)
direct obligations of, or obligations
fully guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit
of the United States;
(ii)
(A) demand and time deposits in,
certificates of deposit of, bankers’ acceptances issued by or
federal funds sold by any depository institution or trust company
(including the Trustee, the Master Servicer or their agents acting
in their respective commercial capacities) incorporated under the
laws of the United States of America or any state thereof and
subject to supervision and examination by federal and/or state
authorities, so long as, at the time of such investment or
contractual commitment providing for such investment, such
depository institution or trust company or its ultimate parent has
a short-term uninsured debt rating in one of the two highest
available rating categories of each Rating Agency and (B) any other
demand or time deposit or deposit which is fully insured by the
FDIC;
(iii)
repurchase obligations with respect to
any security described in clause (i) above and entered into
with a depository institution or trust company (acting as
principal) rated A or higher by each Rating Agency;
(iv)
securities bearing interest or sold at a
discount that are issued by any corporation incorporated under the
laws of the United States of America, the District of Columbia or
any State thereof and that are rated by each Rating Agency in its
highest long-term unsecured rating categories at the time of such
investment or contractual commitment providing for such
investment;
(v)
commercial paper (including both
non-interest-bearing discount obligations and interest-bearing
obligations) that is rated by each Rating Agency in its highest
short-term unsecured debt rating available at the time of such
investment;
(vi)
units of money market funds (which may be
12b-1 funds, as contemplated by the Commission under the Investment
Company Act of 1940) registered under the Investment Company Act of
1940 including funds managed or advised by the Trustee, the Master
Servicer or an affiliate thereof having the highest applicable
rating from each Rating Agency; and
(vii)
if previously confirmed in writing to the
Trustee, any other demand, money market or time deposit, or any
other obligation, security or investment, as may be acceptable to
each Rating Agency in writing as a permitted investment of funds
backing securities having ratings equivalent to its highest initial
ratings of the Senior Certificates;
provided , however , that no instrument described
hereunder shall evidence either the right to receive (a) only
interest with respect to the obligations underlying such instrument
or (b) both principal and interest payments derived from
obligations underlying such instrument and the interest and
principal payments with respect to such instrument provide a yield
to maturity at par greater than 120% of the yield to maturity at
par of the underlying obligations.
“ Permitted Transferee
”: Any Transferee of a Residual Certificate other than
a Disqualified Organization or a non-U.S. Person.
“ Person ”: Any
individual, corporation, partnership, limited liability company,
joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or
political subdivision thereof.
“ Physical Certificates
”: The Class A-R, Class A-R-II and Class P
Certificates.
“ Plaza ”: Plaza Home
Mortgage, Inc., and its successors and assigns, in its capacity as
Originator of the Plaza Mortgage Loans.
“ Plaza Mortgage Loans
”: The Mortgage Loans for which Plaza is listed as
“Originator” on the Mortgage Loan Schedule.
“ Plaza Purchase Agreement
”: The Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of November 1, 2004, between GCFP, as
purchaser, and Plaza, as seller, as the same may be amended from
time to time, and any assignments and conveyances related to the
Plaza Mortgage Loans.
“ PMC ”: PMC Bancorp,
and its successors and assigns, in its capacity as Originator of
the PMC Mortgage Loans.
“ PMC Mortgage Loans
”: The Mortgage Loans for which PMC is listed as
“Originator” on the Mortgage Loan Schedule.
“ PMC Mortgage Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of April 1, 2005, between
GCFP, as purchaser, and PMC Mortgage, as seller, as the same may be
amended from time to time, and any assignments and conveyances
related to the PMC Mortgage Loans.
“ PO Components ”:
The PO-1 Component and the PO-2 Component as
applicable.
“ PO-1 Component ”:
The Principal-Only Component of the Class PO Certificates
that relates to the Group 1 Mortgage Loans.
“ PO-1 Component Principal
Balance ”: As of the Closing Date, $50; thereafter,
as increased by amounts of Net Deferred Interest allocated to the
Class X Certificates in respect of the Group 1 Mortgage Loan as set
forth in Section 5.02 herein.
“ PO-2 Component ”:
The Principal-Only Component of the Class PO Certificates
that relates to the Group 2 Mortgage Loans.
“ PO-2 Component Principal
Balance ”: As of the Closing Date, $50; thereafter,
as increased by amounts of Net Deferred Interest allocated to the
Class X Certificates in respect of the Group 2 Mortgage Loan as set
forth in Section 5.02 herein.
“ Policy Account ”:
The trust account or accounts created and maintained by the
Securities Administrator, on behalf of the Trustee, pursuant to
Section 4.05 hereof in the name of the Trustee for the benefit of
the Class 1-A-1B and Class 2-A-1C Certificateholders and designated
“Class 1-A-1B and Class 2-A-1C Policy Account, Deutsche Bank
National Trust Company, as Trustee, in trust for the registered
Certificateholders of HarborView Mortgage Loan Trust 2005-11,
Mortgage Loan Pass-Through Certificates, Series 2005-11, Class
1-A-1B and Class 2-A-1C Certificates.”
“ Pool Balance ”:
As to any Distribution Date, the aggregate of the Stated
Principal Balances, as of the Close of Business on the first day of
the month preceding the month in which such Distribution Date
occurs, of the Mortgage Loans that were Outstanding Mortgage Loans
on that day.
“ Premium Letter ”:
The letter dated the Closing Date from the Certificate
Insurer to the Seller, the Depositor and the Securities
Administrator (a copy of which has been furnished to the Trustee)
setting forth the payment arrangements for the Aggregate Premium
Amount on the Certificate Insurance Policy and certain related
expense payment arrangements.
“ Premium Proceeds ”:
The amount by which the Termination Price paid in connection
with the termination pursuant to Section 10.01 exceeds the sum of
unpaid principal and accrued and unpaid interest on the
Certificates and unreimbursed Advances and Servicing
Advances.
“ Premium Rate ”:
As specified in the Premium Letter.
“ Prepayment Penalty Amount
”: With respect to any Mortgage Loan and each
Distribution Date, all premiums or charges, if any, paid by
Mortgagors under the related Mortgage Notes as a result of full or
partial Principal Prepayments collected and retained by the
Servicer during the immediately preceding Prepayment Period, under
the terms of the Servicing Agreement.
“ Prepayment Period ”:
With respect to any Distribution Date the calendar month
preceding the month in which such Distribution Date
occurs.
“ Primary Insurance Policy
”: Mortgage guaranty insurance, if any, on an
individual Mortgage Loan, as evidenced by a policy or
certificate.
“ Principal Balance ”:
As to any Mortgage Loan, other than a Liquidated Mortgage
Loan, and any day, the related Cut-Off Date Principal Balance,
minus all collections credited against the Principal Balance
of such Mortgage Loan after the Cut-Off Date, as increased by the
amount of any Deferred Interest added to the outstanding Principal
Balance of such Mortgage Loan pursuant to the terms of the related
Mortgage Note. For purposes of this definition, a Liquidated
Mortgage Loan shall be deemed to have a Principal Balance equal to
the Principal Balance of the related Mortgage Loan as of the final
recovery of related Liquidation Proceeds and a Principal Balance of
zero thereafter. As to any REO Property and any day, the
Principal Balance of the related Mortgage Loan immediately prior to
such Mortgage Loan becoming REO Property.
“ Principal Deficiency
Amount ”: For any Distribution Date and for any
Undercollateralized Group, the excess, if any, of the aggregate
Class Certificate Principal Balance and Component Principal Balance
of such Undercollateralized Group immediately prior to such
Distribution Date over the sum of the Principal Balances of the
Mortgage Loans in the related Loan Group immediately prior to such
Distribution Date.
“Principal Distribution
Amount ”: With
respect to each Loan Group and any Distribution Date, the sum of
(a) each scheduled payment of principal collected or advanced
on the related Mortgage Loans by the Servicer in respect of the
related Due Period, (b) that portion of the Purchase Price,
representing principal of any repurchased Mortgage Loan in that
Loan Group, deposited to the Distribution Account during the
related Prepayment Period, (c) the principal portion of any
related Substitution Adjustments with respect to that Loan Group
deposited in the Distribution Account during the related Prepayment
Period, (d) the principal portion of all Insurance Proceeds
received during the related Prepayment Period with respect to
Mortgage Loans in that Loan Group that are not yet Liquidated
Mortgage Loans, (e) the principal portion of all Net
Liquidation Proceeds received during the related Prepayment Period
with respect to Liquidated Mortgage Loans in that Loan Group,
(f) all Principal Prepayments in part or in full on Mortgage
Loans in that Loan Group applied by the Servicer during the related
Prepayment Period, (g) all Recoveries related to that Loan Group
received during the calendar month preceding the month of that
Distribution Date and (h) on the Distribution Date on which
the Trust is to be terminated pursuant to Section 10.01 hereof,
that portion of the Termination Price in respect of principal for
that Loan Group.
“ Principal-Only Component
”: Either of the PO-1 Component and PO-2 Component, as
applicable.
“ Principal Prepayment
”: Any payment of principal made by the Mortgagor on a
Mortgage Loan that is received in advance of its scheduled Due Date
and that is not accompanied by an amount of interest representing
the full amount of scheduled interest due on any Due Date in any
month or months subsequent to the month of prepayment.
“ Private Certificates
”: The Class B-4, Class B-5, Class B-6, Class P and
Class A-R-II Certificates.
“ Private Placement
Memorandum ”: The Private Placement Memorandum
dated August 31, 2005 relating to the initial sale of the Class
B-4, Class B-5 and Class B-6 Certificates.
“ Pro Rata Share ”:
As 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 Certificate
Principal Balance of that Class and the denominator of which is the
aggregate of the Class Certificate 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 February 22, 2005, relating to the Senior
Certificates and the Class B-1, Class B-2 and Class B-3
Certificates.
“ Prospectus Supplement
”: The Prospectus Supplement dated August 29, 2005
relating to the initial sale of the Senior Certificates and the
Class B-1, Class B-2 and Class B-3 Certificates.
“ Purchase Agreement
”: Each of the Alliance Purchase Agreement, Commercial
Capital Purchase Agreement, ComUnity Lending Purchase Agreement,
E-Loan Purchase Agreement, Gateway Purchase Agreement, Home Loan
Purchase Agreement, Homefield Purchase Agreement, Loan Center
Purchase Agreement, Loan Link Purchase Agreement, Metrocities
Purchase Agreement, Paul Financial Purchase Agreement, Plaza
Purchase Agreement, PMC Purchase Agreement, Secured Bankers
Purchase Agreement and Sierra Pacific Purchase Agreement, as
applicable.
“ Purchase Price ”:
With respect to any Mortgage Loan or REO Property to be
purchased pursuant to or as contemplated by Section 2.03 hereof,
and as confirmed by an Officers’ Certificate from the Seller
to the Trustee, an amount equal to the sum of (i) 100% of the
Principal Balance thereof as of the date of purchase (or such other
price as provided in Section 10.01), plus (ii) in the case of
(x) a Mortgage Loan, accrued interest on such Principal
Balance at the applicable Loan Rate (or if the servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the Servicing
Fee Rate) from the Due Date as to which interest was last covered
by a payment by the Mortgagor through the end of the calendar month
in which the purchase is to be effected, and (y) an REO
Property, the sum of (1) accrued interest on such Principal
Balance at the applicable Loan Rate (or if the servicer is
repurchasing such Mortgage Loan, the Loan Rate minus the Servicing
Fee Rate) from the Due Date as to which interest was last covered
by a payment by the Mortgagor plus (2) REO Imputed Interest for
such REO Property for each calendar month commencing with the
calendar month in which such REO Property was acquired and ending
with the calendar month in which such purchase is to be effected,
net of the total of all net rental income, Insurance Proceeds and
Liquidation Proceeds that as of the date of purchase had been
distributed as or to cover REO Imputed Interest, plus
(iii) any unreimbursed Servicing Advances and any unpaid
Expense Fees allocable to such Mortgage Loan or REO Property, plus
(iv) in the case of a Mortgage Loan required to be purchased
pursuant to Section 2.03 hereof, expenses reasonably incurred or to
be incurred by the Trustee in respect of the breach or defect
giving rise to the purchase obligation and plus (v) any costs and
damages incurred by the Trust in connection with any violation by
such Mortgage Loan of any predatory- or abusive-lending
laws.
“ Qualified Insurer ”:
A mortgage guaranty insurance company duly qualified as such
under the laws of the state of its principal place of business and
each state having jurisdiction over such insurer in connection with
the insurance policy issued by such insurer, duly authorized and
licensed in such states to transact a mortgage guaranty insurance
business in such states and to write the insurance provided by the
insurance policy issued by it, approved as a Fannie Mae-approved
mortgage insurer and having a claims paying ability rating of at
least “AA” or equivalent rating by a nationally
recognized statistical rating organization. Any replacement
insurer with respect to a Mortgage Loan must have at least as high
a claims paying ability rating as the insurer it replaces had on
the Closing Date.
“ Qualified Substitute Mortgage
Loan ”: A mortgage loan substituted for a Deleted
Mortgage Loan pursuant to the terms of this Agreement which must,
on the date of such substitution, (i) have an outstanding
principal balance, after application of all scheduled payments of
principal and interest due during or prior to the month of
substitution, not in excess of, and not more than 5% less than, the
Principal Balance of the Deleted Mortgage Loan as of the Due Date
in the calendar month during which the substitution occurs,
(ii) have a maximum loan rate not less than the Maximum Loan
Rate of the Deleted Mortgage Loan, (iii) have a gross margin
equal to or greater than the Gross Margin of the Deleted Mortgage
Loan, (iv) have the same Index as the Deleted Mortgage Loan, (v)
have its next adjustment date not more than two months after the
next Adjustment Date of the Deleted Mortgage Loan, (vi) have a
remaining term to maturity not greater than (and not more than one
year less than) that of the Deleted Mortgage Loan, (vii) be
current as of the date of substitution, (viii) have a
Loan-to-Value Ratio as of the date of substitution equal to or
lower than the Loan-to-Value Ratio of the Deleted Mortgage Loan as
of such date, (ix) have been underwritten or re-underwritten
in accordance with the same or substantially similar underwriting
criteria and guidelines as the Deleted Mortgage Loan, (x) is of the
same or better credit quality as the Deleted Mortgage Loan and
(xi) conform to each representation and warranty set forth in
Section 2.04 hereof applicable to the Deleted Mortgage Loan.
In the event that one or more mortgage loans are substituted
for one or more Deleted Mortgage Loans, the amounts described in
clause (i) hereof shall be determined on the basis of aggregate
principal balances, the terms described in clause (vi) hereof
shall be determined on the basis of weighted average remaining term
to maturity and the Loan-to-Value Ratio described in clause
(viii) hereof shall be satisfied as to each such mortgage loan
and, except to the extent otherwise provided in this sentence, the
representations and warranties described in clause (x) hereof
must be satisfied as to each Qualified Substitute Mortgage Loan or
in the aggregate, as the case may be.
“ Rating Agency ”:
S&P and Moody’s. If any rating agency or its
successor shall no longer be in existence, “Rating
Agency” shall include such nationally recognized statistical
rating agency, or other comparable Person, as shall have been
designated by the Depositor, notice of which designation shall be
given to the Trustee 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 (other than the
initial Distribution Date) and the Certificates (other than the
LIBOR Certificates), the last Business Day of the calendar month
preceding the month in which such Distribution Date occurs.
With respect to each Distribution Date (other than the
initial Distribution Date) and the LIBOR Certificates, the last
Business Day preceding that Distribution Date, unless any Class of
LIBOR Certificates are no longer Book-Entry Certificates, in which
case the Record Date for such Class of LIBOR Certificates shall be
the last Business Day of the calendar month preceding the month in
which that Distribution Date occurs. With respect to the
initial Distribution Date and all Classes of Certificates, the
Closing Date.
“ Recovery ”:
With respect to any Distribution Date and Mortgage Loan that
became a Liquidated Mortgage Loan in a month preceding the month
prior to that Distribution Date and with respect to which the
related Realized Loss was allocated to one or more Classes of
Certificates, an amount received in respect of such Liquidated
Mortgage Loan during the prior calendar month, net of any
reimbursable expenses.
“ Reference Bank ”
shall be a leading bank engaged in transactions in Eurodollar
deposits in the international Eurocurrency market, which shall not
control, be controlled by, or be under common control with, the
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 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B, Class 2-A-1C, Class X, Class PO, Class B-1, Class B-2,
Class B-3, Class B-4, Class B-5 and Class B-6
Certificate.
“ Regulation S ”:
Regulation S promulgated under the Securities Act or any
successor provision thereto, in each case as the same may be
amended from time to time; and all references to any rule, section
or subsection of, or definition or term contained in,
Regulation S means such rule, section, subsection, definition
or term, as the case may be, or any successor thereto, in each case
as the same may be amended from time to time.
“ Regulation S Global
Security ”: The meaning specified in Section
6.01.
“ Relief Act ”:
The Servicemembers Civil Relief Act, 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, under the REMIC
Provisions, (i) cause any REMIC created hereunder to fail to
qualify as a REMIC while any regular interest in such REMIC is
outstanding, (ii) result in a tax on prohibited transactions with
respect to any REMIC created hereunder or (iii) constitute a
taxable contribution to any REMIC created hereunder after the
Startup Day.
“ REMIC Provisions ”:
Provisions of the federal income tax law relating to real
estate mortgage investment conduits which appear at Section 860A
through 860G of Subchapter M of Chapter 1 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 15 th
calendar day of each month 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 Servicer in respect
of an REO Property pursuant to the Servicing Agreement.
“ REO Disposition ”:
The sale or other disposition of an REO Property on behalf of
the Trust.
“ REO Imputed Interest
”: As to any REO Property, for any calendar month
during which such REO Property was at any time part of the Trust
Fund, one month’s interest at the applicable Net Loan Rate on
the Principal Balance of such REO Property (or, in the case of the
first such calendar month, of the related Mortgage Loan if
appropriate) as of the Close of Business on the Due Date in such
calendar month.
“ REO Principal Amortization
”: With respect to any REO Property, for any calendar
month, the excess, if any, of (a) the aggregate of all amounts
received in respect of such REO Property during such calendar
month, whether in the form of rental income, sale proceeds
(including, without limitation, that portion of the Termination
Price paid in connection with a purchase of all of the Mortgage
Loans and REO Properties pursuant to Section 10.01 hereof that is
allocable to such REO Property) or otherwise, net of any portion of
such amounts (i) payable pursuant to the applicable provisions of
the Servicing Agreement in respect of the proper operation,
management and maintenance of such REO Property or (ii) payable or
reimbursable to the Servicer pursuant to the applicable provisions
of the Servicing Agreement for unpaid Master Servicing Fees and
Servicing Fees in respect of the related Mortgage Loan and
unreimbursed Servicing Advances and Advances in respect of such REO
Property or the related Mortgage Loan, over (b) the REO
Imputed Interest in respect of such REO Property for such calendar
month.
“ REO Property ”:
A Mortgaged Property acquired by the Servicer on behalf of
the Trust Fund through foreclosure or deed-in-lieu of foreclosure
in accordance with the applicable provisions of the Servicing
Agreement.
“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 Certificate
and any Distribution Date, an amount equal to the lesser of (i) the
Interest Distributable Amount for the Class X Certificates for such
Distribution Date (after giving effect to such Certificate’s
share of any Net Deferred Interest and after any reduction in the
Interest Distributable Amount due to Net Interest Shortfalls on
such Distribution Date) and (ii) the amount required to bring the
balance on deposit in the Basis Risk Reserve Fund up to an amount
equal to the Basis Risk Shortfalls for such Distribution Date with
respect to the Class 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B, Class 2-A-1C, Class B-1, Class B-2, Class B-3, Class B-4,
Class B-5 and Class B-6 Certificates (and with respect to the Class
1-A-1A, Class 1-A-1B, Class 2-A-1A, Class 2-A-1B and Class 2-A-1C
Certificates, after giving effect to distributions of payments made
pursuant to the related 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
”: Each of the Class A-R and the Class A-R-II
Certificate.
“ Responsible Officer
”: When used with respect to the Trustee or any
director, the President, any vice president, any assistant vice
president, any associate or any other officer of the Trustee
customarily performing functions similar to those performed by any
of the above designated officers and, with respect to a particular
matter, to whom such matter is referred because of such
officer’s knowledge of and familiarity with the particular
subject.
“ Restricted Classes
”: As defined in Section 5.01(d).
“ Restricted Global Security
”: As defined in Section 6.01.
“ Sarbanes-Oxley
Certification ”: A written certification covering,
among other things, servicing of the Mortgage Loans by the Servicer
and signed by an officer of the Master Servicer that complies with
(i) the Sarbanes-Oxley Act of 2002, as amended from time to time,
and (ii) the February 21, 2003 Statement by the Staff of the
Division of Corporation Finance of the Securities and Exchange
Commission Regarding Compliance by Asset-Backed Issuers with
Exchange Act Rules 13a-14 and 15d-14, as in effect from time to
time; provided that if, after the Closing Date (a) the
Sarbanes-Oxley Act of 2002 is amended, (b) the Statement referred
to in clause (ii) is modified or superseded by any subsequent
statement, rule or regulation of the Securities and Exchange
Commission or any statement of a division thereof, or (c) any
future releases, rules and regulations are published by the
Securities and Exchange Commission from time to time pursuant to
the Sarbanes-Oxley Act of 2002, which in any such case affects the
form or substance of the required certification and results in the
required certification being, in the reasonable judgment of the
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,
Depositor and the Seller following a negotiation in good faith to
determine how to comply with any such new requirements.
“ S&P ”:
Standard & Poor’s Ratings Services, a division of
The McGraw-Hill Companies, Inc., and any successor thereto.
“ Secured Bankers ”:
Secured Bankers Mortgage Company, and its successors and assigns,
in its capacity as Originator of the Secured Bankers Mortgage
Loans.
“ Secured Bankers Mortgage
Loans ”: The Mortgage Loans for which Secured
Bankers is listed as “Originator” on the Mortgage Loan
Schedule.
“ Secured Bankers Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of March 1, 2004, between
GCFP, as purchaser, and Secured Bankers, as seller, as the same may
be amended from time to time, and any assignments and conveyances
related to the Secured Bankers Mortgage Loans.
“ 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 1-A-1A, Class 1-A-1B, Class
2-A-1A, Class 2-A-1B, Class 2-A-1C, Class X, Class PO or Class A-R
Certificates.
“ Senior Certificate Group
”: Any of (a) the Class 1-A-1A, Class 1-A-1B and Class
A-R Certificates with respect to Loan Group 1 and (b) the Class
2-A-1A, Class 2-A-1B and Class 2-A-1C Certificates with respect to
Loan Group 2.
“ Senior Certificateholder
”: Any Holder of a Senior Certificate.
“ Senior Credit Support
Depletion Date ”: The date on which the Class
Certificate Principal Balance of each Class of Subordinate
Certificates has been reduced to zero.
“ Senior Percentage ”:
With respect to each Loan Group and any Distribution Date,
the percentage equivalent of a fraction the numerator of which is
the aggregate of the Class Certificate Principal Balances and
Component Principal Balances of the Classes of Senior Certificates
and Principal-Only Components relating to that Loan Group
immediately prior to such Distribution Date and the denominator of
which is the Loan Group Balance in the related Loan Group for such
Distribution Date; provided, however , that on any
Distribution Date after a Senior Termination Date has occurred with
respect to the Senior Certificates and Principal-Only Component
related to a Loan Group, the Senior Percentage for the related Loan
Group will be equal to 0% and; provided, further , that on
any Distribution Date after a Senior Termination Date has occurred
with respect to the Senior Certificates and Principal-Only
Component related to one Loan Group, the Senior Percentage of the
Loan Group related to the remaining Senior Certificates and
Principal-Only Component is the percentage equivalent of a
fraction, the numerator of which is the aggregate of the
Certificate Principal Balances of each remaining Class of Senior
Certificates and Principal-Only Component immediately prior to such
date and the denominator of which is the aggregate of the
Certificate Principal Balances of all Classes of Certificates,
immediately prior to such date.
“ Senior Prepayment
Percentage ”: With respect to each Loan Group and
any Distribution Date before the Distribution Date in September
2015, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Loan Group for any Distribution Date occurring
on or after the tenth anniversary of the first Distribution Date
will be as follows: (i) from September 2015 through
August 2016, the related Senior Percentage plus 70% of the related
Subordinate Percentage for that Distribution Date; (ii) from
September 2016 through August 2017, the related Senior Percentage
plus 60% of the related Subordinate Percentage for that
Distribution Date; (iii) from September 2017 through August
2018, the related Senior Percentage plus 40% of the related
Subordinate Percentage for that Distribution Date; (iv) from
September 2018 through August 2019, the related Senior Percentage
plus 20% of the related Subordinate Percentage for that
Distribution Date; and (v) from and after September 2019, the
related Senior Percentage for that Distribution Date; provided,
however, that there shall be no reduction in the Senior
Prepayment Percentage for any Loan Group unless the Step Down
Conditions are satisfied; and provided, further , that if on
any Distribution Date occurring on or after the Distribution Date
in September 2019, the Senior Percentage for any Loan Group exceeds
the initial Senior Percentage for such Loan Group, the related
Senior Prepayment Percentage for that Distribution Date will again
equal 100%.
Notwithstanding the above, (i) if on any
Distribution Date prior to September 2008 the Two Times Test for
such Loan Group is satisfied, the Senior Prepayment Percentage for
each Loan Group will equal the related Senior Percentage for such
Distribution Date plus 50% of an amount equal to 100% minus the
related Senior Percentage for such Distribution Date and (ii) if on
any Distribution Date in or after September 2008 the applicable Two
Times Test is satisfied, the Senior Prepayment Percentage for each
Loan Group will equal the related Senior Percentage for such
Distribution Date.
“ Senior Principal Distribution
Amount ”: With respect to each Loan Group and any
Distribution Date, the sum of:
(1)
the related Senior Percentage of all
amounts described in clauses (a) through (d) of the definition of
“Principal Distribution Amount” with respect to such
Loan Group for that Distribution Date;
(2)
with respect to each Mortgage Loan in
that Loan Group which became a Liquidated Mortgage Loan during the
related Prepayment Period, the lesser of
(x)
the related Senior Percentage of the
Stated Principal Balance of that Mortgage Loan; and
(y)
the related Senior Prepayment Percentage
of the amount of the Net Liquidation Proceeds allocable to
principal received with respect to that Mortgage Loan
(3)
the related Senior Prepayment Percentage
of the amounts described in clauses (f) and (g) of the definition
of “Principal Distribution Amount” with respect to such
Loan Group.
“ Senior Termination Date
”: For each Senior Certificate Group and Principal-Only
Component, the Distribution Date on which the aggregate of the
Class Certificate Principal Balances and related Component
Principal Balance of the related Senior Certificates and
Principal-Only Component is reduced to zero.
“ Servicer ”:
GMAC, as primary servicer of the Mortgage Loans as set forth
and as individually defined in the Mortgage Loan Schedule hereto
and any successors thereto.
“ Servicer Remittance Date
”: The “Remittance Date” defined in the
Servicing Agreement.
“ Servicing Account ”:
Any account established and maintained by the Servicer with
respect to the related Mortgage Loans and any REO Property,
pursuant to the terms of the Servicing Agreement.
“ Servicing Addendum
”: As defined in the Servicing Agreement.
“ Servicing Advances
”: With respect to the Master Servicer and the
Servicer, all customary, reasonable and necessary “out of
pocket” costs and expenses (including reasonable
attorneys’ fees and expenses) incurred by the Master Servicer
or the Servicer in the performance of its servicing obligations
hereunder, including, but not limited to, the cost of (i) the
preservation, restoration, inspection and protection of the
Mortgaged Property, (ii) any enforcement or judicial proceedings,
including foreclosures, (iii) the management and liquidation of the
REO Property and (iv) compliance with the obligations under Article
III hereof or the Servicing Agreement.
“ Servicing
Agreement”: The GMAC Servicing Agreement relating
to the Mortgage Loans as set forth in Exhibit M hereto, as
reconstituted by the Reconstituted Servicing Agreement, and any
other servicing agreement entered into between a successor
servicer, the Master Servicer and the Seller or the Trustee on
behalf of the Trust pursuant to the terms hereof.
“ Servicing Fee ”:
With respect to the Servicer and each Mortgage Loan serviced
by the Servicer and for any calendar month, the fee payable to the
Servicer determined pursuant to the Servicing Agreement.
“ Servicing Fee Rate
”: With respect to each Mortgage Loan, the per annum
servicing fee rate set forth on the Mortgage Loan
Schedule.
“ Servicing Officer”:
Any officer of the Master Servicer or the Servicer
involved in, or responsible for, the administration and servicing
(or master servicing) of Mortgage Loans, whose name and specimen
signature appear on a list of servicing officers furnished by the
Master Servicer to the Trustee and the Depositor on the Closing
Date, as such list may from time to time be amended.
“ Servicing Rights ”:
With respect to any Mortgage Loan, any and all of the following:
(a) the right, under the Servicing Agreement, to terminate the
Servicer as servicer of such Mortgage Loan, with or without cause,
subject to Section 3.03 of this Agreement; (b) the right, under the
Servicing Agreement, to transfer the Servicing Rights and/or all
servicing obligations with respect to such Mortgage Loan, subject
to Section 3.03 of this Agreement; (c) the right to receive the
Servicing Fee, less an amount to be retained by the Servicer as its
servicing compensation as agreed to by the Servicing Rights Owner
and the Servicer, subject to Section 3.03 of this Agreement and (d)
all powers and privileges incident to any of the
foregoing.
“ Servicing Rights Owner
”: With respect to the Mortgage Loans, GCFP or any
successor or assign of GCFP.
“ Sierra Pacific ”:
Sierra Pacific Mortgage Co., Inc., and its successors and assigns,
in its capacity as Originator of the Sierra Pacific Mortgage
Loans.
“ Sierra Pacific Mortgage
Loans ”: The Mortgage Loans for which Sierra
Pacific is listed as “Originator” on the Mortgage Loan
Schedule.
“ Sierra Pacific Purchase
Agreement ”: The Master Mortgage Loan Purchase and
Interim Servicing Agreement, dated as of July 1, 2003, between
GCFP, as purchaser, and Sierra Pacific, as seller, as the same may
be amended from time to time, and any assignments and conveyances
related to the Sierra Pacific Mortgage Loans.
“ 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 September 2005, the Cut-Off Date Principal
Balance of such Mortgage Loan, (b) thereafter as of any date
of determination up to and including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, the Cut-Off Date Principal
Balance of such Mortgage Loan minus , in the case of each
Mortgage Loan, the sum of (i) the principal portion of each
Monthly Payment due on a Due Date subsequent to the Cut-Off Date,
whether or not received, (ii) all Principal Prepayments
received after the Cut-Off Date, to the extent distributed pursuant
to Section 5.01 before such date of determination and
(iii) all Liquidation Proceeds and Insurance Proceeds applied
by the Servicer as recoveries of principal in accordance with the
applicable provisions of the Servicing Agreement, to the extent
distributed pursuant to Section 5.01 before such date of
determination; and (c) as of any date of determination
subsequent to the Distribution Date on which the proceeds, if any,
of a Liquidation Event with respect to such Mortgage Loan would be
distributed, zero; provided that , such Stated Principal
Balance shall be increased by the amount of any Deferred Interest
added to the outstanding Principal Balance of such Mortgage Loan
pursuant to the terms of the related Mortgage Note. With
respect to any REO Property: (x) as of any date of
determination up to and including the Distribution Date on which
the proceeds, if any, of a Liquidation Event with respect to such
REO Property would be distributed, an amount (not less than zero)
equal to the Stated Principal Balance of the related Mortgage Loan
as of the date on which such REO Property was acquired on behalf of
the Trust, 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
”: As of the first Distribution Date as to which any decrease
in any Senior Prepayment Percentage applies and each Loan Group,
(i) the outstanding Principal Balance of all Mortgage Loans in such
Loan Group 60 days or more Delinquent (including related Mortgage
Loans in REO and foreclosure) (averaged over the preceding six
month period), as a percentage of the aggregate of the Class
Certificate Principal Balances of the Classes of Subordinate
Certificates related to such Loan Group on such Distribution Date,
does not equal or exceed 50% and (ii) cumulative Realized
Losses with respect to all of the Mortgage Loans in such Loan Group
do not exceed:
·
for any Distribution Date on or after the
tenth anniversary of the first Distribution Date, 30% of the
aggregate Certificate Principal Balance of the related Subordinate
Certificates as of the Closing Date,
·
for any Distribution Date on or after the
eleventh anniversary of the first Distribution Date, 35% of the
aggregate Certificate Principal Balance of the related Subordinate
Certificates as of the Closing Date,
·
for any Distribution Date on or after the
twelfth anniversary of the first Distribution Date, 40% of the
aggregate Certificate Principal Balance of the related Subordinate
Certificates as of the Closing Date,
·
for any Distribution Date on or after the
thirteenth anniversary of the first Distribution Date, 45% of the
aggregate Certificate Principal Balance of the related Subordinate
Certificates as of the Closing Date, and
·
for any Distribution Date on or after the
fourteenth anniversary of the first Distribution Date, 50% of the
aggregate Certificate Principal Balance of the related Subordinate
Certificates as of the Closing Date.
“ Strike Rate ”:
With respect to any Distribution Date and the Yield
Maintenance Agreement, the strike rate listed on Schedule III
hereto.
“ Subordinate Adjusted Cap
Rate ”: For any Distribution Date, the weighted
average of the Group 1 Adjusted Cap Rate and the Group 2 Adjusted
Cap Rate for such Distribution Date (computed without regard to the
adjustments applicable to the Class 1-A-1B and Class 2-A-1C
Certificates), weighted on the basis of the Subordinate Component
for Loan Group 1 and Loan Group 2 for such Distribution
Date.
“ Subordinate Adjusted Net
WAC ”: For any Distribution Date, the weighted
average of the Group 1 Adjusted Net WAC and the Group 2 Adjusted
Net WAC for such Distribution Date, weighted on the basis of the
Subordinate Component for Loan Group 1 and Loan Group 2 for such
Distribution Date.
“ Subordinate Certificate
”: Any one of the Class B-1, Class B-2, Class B-3,
Class B-4, Class B-5 or Class B-6 Certificates.
“ Subordinate Class Expense
Share ”: For each Class of Subordinate Certificates
and each Accrual Period, the Subordinate Class Expense Share shall
be allocated in reverse order of their respective numerical Class
designations (beginning with the Class of Subordinate Certificates
with the highest numerical Class designation) and will be an amount
equal to (i) the sum of, without duplication, (a) the amounts paid
to the Trustee from the Trust Fund during such Accrual Period
pursuant to Section 8.05 hereof to the extent such amounts were
paid for ordinary or routine expenses and were not taken into
account in computing the Net Loan Rate of any Mortgage Loan and (b)
amounts described in clause (y) of the definition of Available
Funds herein to the extent such amounts were paid for ordinary or
routine expenses and were not taken into account in computing the
Net Mortgage Rate of any Mortgage Loan minus (ii) amounts
taken into account under clause (i) of this definition in
determining the Subordinate Class Expense Share of any Class of
Subordinate Certificates having a higher numeric designation.
In no event, however, shall the Subordinate Class Expense
Share for any Class of Subordinate Certificates and any Accrual
Period exceed the product of (i) (a) the lesser of the Pass-Through
Rate for such Class or the Subordinate Adjusted Cap Rate, divided
by (b) 12 and (ii) the Class Certificate Principal Amount of such
Class of Subordinate Certificates as of the beginning of the
related Accrual Period.
“ Subordinate Component
”: With respect to each Loan Group and any Distribution
Date, the excess of the related Loan Group Balance for such
Distribution Date over the aggregate Class Certificate Principal
Balance of the related Senior Certificate Group immediately
preceding such Distribution Date. The designation
“1” and “2” appearing after the
corresponding Loan Group designation is used to indicate a
Subordinate Component allocable to Loan Group 1 and Loan Group 2,
respectively.
“ Subordinate Net WAC
”: For any Distribution Date, the weighted average of
the Group 1 Net WAC and the Group 2 Net WAC for such Distribution
Date, weighted on the basis of the Subordinate Component for Loan
Group 1 and Loan Group 2 for such Distribution Date.
“ Subordinate Net WAC Cap
”: With respect to the Subordinate Certificates and any
Distribution Date, the weighted average of the Group 1 Net WAC Cap
and the Group 2 Net WAC Cap; provided, that each of the Group 1 Net
WAC Cap and the Group 2 Net WAC Cap is computed without regard to
the adjustments applicable to the Class 1-A-1B and Class 2-A-1C
Certificates, weighted on the basis of the Subordinate Component
for each Loan Group.
“ Subordinate Percentage
”: With respect to each Loan Group and any Distribution
Date, the difference between 100% and the related Senior Percentage
for such Loan Group and Distribution Date; provided, however
, that on any Distribution Date occurring after a Senior
Termination Date has occurred with respect to the Senior
Certificates and Principal-Only Components related to two Loan
Groups, the Subordinate Percentage will represent the entire
interest of the Subordinate Certificates in the Mortgage Loans and
will equal the difference between 100% and the related Senior
Percentage for such Distribution Date.
“ Subordinate Prepayment
Percentage ”: With respect to each Loan Group and
any Distribution Date, the difference between 100% and the related
Senior Prepayment Percentage for such Distribution Date.
“ Subordinate Principal
Distribution Amount ”: With respect to each Loan
Group and any Distribution Date, an amount equal to the sum of for
all Loan Groups:
(1)
the related Subordinate Percentage
of all amounts described in clauses (a) through (d) of the
definition of “Principal Distribution Amount” for that
Loan Group and Distribution Date;
(2)
with respect to each Mortgage Loan in
such Loan Group that became a Liquidated Mortgage Loan during the
related Prepayment Period, the amount of the Net Liquidation
Proceeds allocated to principal received with respect thereto
remaining after application thereof pursuant to clause (2) of the
definition of “Senior Principal Distribution Amount”
for that Loan Group and Distribution Date, up to the related
Subordinate Percentage of the Stated Principal Balance of such
Mortgage Loan; and
(3)
the related Subordinated Prepayment
Percentage of all amounts described in clause (f) of the definition
of “Principal Distribution Amount” for such Loan Group
and Distribution Date;
provided, however
, that on any Distribution Date occurring
after a Senior Termination Date has occurred with respect to the
Senior Certificates and Principal-Only Component related to two
Loan Groups, the Subordinate Principal Distribution Amount will not
be calculated by Loan Group but will equal the amount calculated
pursuant to the formula set forth above based on the applicable
Subordinate Percentage or Subordinate Prepayment Percentage, as
applicable, for such Distribution Date with respect to all the
Mortgage Loans rather than the Mortgage Loans in the related Loan
Group only.
“ Substitution Adjustment
”: As defined in Section 2.03(d) hereof.
“ Tax Returns ”:
The federal income tax return on Internal Revenue Service
Form 1066, U.S. Real Estate Mortgage Investment Conduit Income Tax
Return, including Schedule Q thereto, Quarterly Notice to Residual
Interest Holders of the REMIC Taxable Income or Net Loss
Allocation, or any successor forms, to be filed on behalf of every
REMIC created hereunder under the REMIC Provisions, together with
any and all other information reports or returns that may be
required to be furnished to the Certificateholders or filed with
the Internal Revenue Service or any other governmental taxing
authority under any applicable provisions of federal, state or
local tax laws.
“ Termination Price ”:
As defined in Section 10.01(a) hereof.
“ Transfer ”:
Any direct or indirect transfer or sale of any Ownership
Interest in a Residual Certificate.
“ Transfer Affidavit
”: As defined in Section 6.02(e)(ii) hereof.
“ Transferee ”:
Any Person who is acquiring by Transfer any Ownership
Interest in a Certificate.
“ Trust ”:
HarborView Mortgage Loan Trust 2005-11, the trust created
hereunder.
“ Trust Fund ”:
The segregated pool of assets subject hereto, constituting
the primary trust created hereby and to be administered hereunder,
with respect to which a REMIC election is to be made, such Trust
Fund consisting of: (i) such Mortgage Loans as from time to
time are subject to this Agreement, together with the Mortgage
Files relating thereto, and together with all collections thereon
and proceeds thereof, excluding Prepayment Penalty Amounts,
(ii) any REO Property, together with all collections thereon
and proceeds thereof, (iii) the Trustee’s rights with
respect to the Mortgage Loans under all insurance policies required
to be maintained pursuant to this Agreement and any proceeds
thereof, (iv) the Depositor’s rights under the Mortgage
Loan Purchase Agreement (including any security interest created
thereby); (v) the Distribution Account (subject to the last
sentence of this definition), any REO Account and such assets that
are deposited therein from time to time and any investments
thereof, together with any and all income, proceeds and payments
with respect thereto; (vi) all right, title and interest of
the Seller in and to the Servicing Agreement; (vii) the Basis
Risk Reserve Fund and the Yield Maintenance Account and
(viii) the rights of the Trust under the Yield Maintenance
Agreement. 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, its successors and
assigns, or any successor trustee appointed as provided
herein.
“ 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 Certificate Principal Balances of the Subordinate
Certificates, does not equal or exceed 50%; and (iii) on or after
the Distribution Date in September 2008, cumulative Realized Losses
do not exceed 30% of the Original Subordinated Principal Balance or
prior to the Distribution Date in September 2008, cumulative
Realized Losses do not exceed 20% of the Original Subordinated
Principal Balance.
“ Undercollateralized Group
”: With respect to any Distribution Date and Loan
Group, as to which the aggregate Class Certificate Principal
Balance and Component Principal Balance of the related classes of
Senior Certificates and Principal-Only Component, after giving
effect to distributions pursuant to Section 5.01(a) on such date,
is greater than the Loan Group Balance of the related Loan Group
for such Distribution Date.
“ Underwriter’s
Exemption ”: Prohibited Transaction Exemption 90-59
(Exemption Application No. D-8374), as amended by Prohibited
Transaction Exemption 97-34 (Exemption Application Nos. D-10245 and
D-10246), as amended by Prohibited Transaction Exemption 2000-58
(Exemption Application No. D-10829) and as amended by Prohibited
Transaction Exemption 2002-41 (Exemption Application No. D-11077)
(or any successor thereto), or any substantially similar
administrative exemption granted by the U.S. Department of
Labor.
“ Uninsured Cause ”:
Any cause of damage to a Mortgaged Property such that the
complete restoration of such property is not fully reimbursable by
the hazard insurance policies required to be maintained on such
Mortgaged Property.
“ United States Person
” or “ U.S. Person ”: A
“United States person” within the meaning set forth in
Section 7701(a)(30) of the Code or successor
provisions.
“ Unpaid Interest Shortfall
Amount ”: With respect to each Class of
Certificates (other than the Class PO Certificates), and
(i) the first Distribution Date, zero, and (ii) any
Distribution Date after the first Distribution Date, the amount, if
any, by which (1)(a) the Monthly Interest Distributable Amount for
that Class for the immediately preceding Distribution Date exceeds
(b) the aggregate amount distributed on that Class in respect of
such Monthly Interest Distributable Amount on the preceding
Distribution Date plus (2) any such shortfalls remaining unpaid
from prior Distribution Dates.
“ Upper Tier REMIC ”:
As described in the Preliminary Statement.
“ Value ”: With
respect to any Mortgage Loan and the related Mortgaged Property,
the lesser of:
(i)
the value of such Mortgaged Property as
determined by an appraisal made for the originator of the Mortgage
Loan at the time of origination of the Mortgage Loan by an
appraiser who met the minimum requirements of Fannie Mae and
Freddie Mac; and
(ii)
the purchase price paid for the related
Mortgaged Property by the Mortgagor with the proceeds of the
Mortgage Loan;
provided, however
, that in the case of a Refinancing
Mortgage Loan, such value of the Mortgaged Property is based solely
upon the value determined by an appraisal made for the originator
of such Refinancing Mortgage Loan at the time of origination by an
appraiser who met the minimum requirements of Fannie Mae and
Freddie Mac.
“ Voting Rights ”:
The portion of the voting rights of all of the Certificates
which is allocated to any Certificate. 97% of the voting
rights shall be allocated among the Classes of Regular Certificates
(other than the Class X, Class P, Class A-R and Class A-R-II
Certificates), pro rata , based on a fraction, expressed as
a percentage, the numerator of which is the Class Certificate
Principal Balance of such Class and the denominator of which is the
aggregate of the Class Certificate Principal Balances then
outstanding, 1% of the voting rights shall be allocated to the
Class X Certificates, 1% of the voting rights shall be allocated to
the Class P Certificate and 1% of the voting rights shall be
allocated to the Class A-R Certificate; provided, however ,
that when none of the Regular Certificates is outstanding, 100% of
the voting rights shall be allocated to the Holder of the Class A-R
Certificate. The voting rights allocated to a Class of
Certificates shall be allocated among all Holders of such Class,
pro rata , based on a fraction the numerator of which is the
Certificate Principal Balance or Certificate Notional Balance, as
applicable, of each Certificate of such Class and the denominator
of which is the Class Certificate Principal Balance or Class
Certificate Notional Balance, as applicable, of such Class;
provided, however , that any Certificate registered in the
name of the Master Servicer, the Securities Administrator or the
Trustee or any of their affiliates shall not be included in the
calculation of Voting Rights. No voting rights shall be
allocated to the Class A-R-II Certificate.
“ Writedown Amount ”:
The reduction described in Section 5.03(c).
“ Yield Maintenance Account
”: The separate trust account maintained and held by
the Securities Administrator pursuant to Section 4.04, which
account shall bear a designation clearly indicating that the funds
deposited therein are held in trust for the benefit of the Trust on
behalf of the Class 1-A-1A, Class 1-A-1B, Class 2-A-1A, Class
2-A-1B and Class 2-A-1C Certificateholders, and which account
provides that the Securities Administrator may make, or cause to be
made, withdrawals therefrom in accordance with Section
4.04.
“ Yield Maintenance
Agreement ”: Each of the four transactions
evidenced by the confirmation dated August 31, 2005 together with
any other related documents thereto, between the Yield Maintenance
Provider and the Trust. The Yield Maintenance Agreements will
be for the benefit of (i) the Class 1-A-1A Certificates, (ii) the
Class 1-A-1B Certificates, (ii) the Class 2-A-1A and Class 2-A-1B
Certificates and (iv) the Class 2-A-1C Certificates.
“ Yield Maintenance
Distributable Amount ”: With respect to each
Distribution Date and the Class 1-A-1A, Class 1-A-1B, Class 2-A-1A,
Class 2-A-1B and Class 2-A-1C Certificates, an amount equal to the
product of (i) the excess, if any, of (x) LIBOR, subject to a
maximum of 11.00%, 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
each Yield Maintenance Agreement and any Distribution Date, the
lesser of (i) the amount set forth on Schedule III hereto for the
applicable Class or Classes of Certificates and (ii) the aggregate
Class Certificate Principal Balance of (a) the Class 1-A-1A
Certificates, (b) the Class 1-A-1B Certificates, (c) the Class
2-A-1A and Class 2-A-1B Certificates or (d) the Class 2-A-1C
Certificates, as applicable
“ Yield Maintenance Payment
”: The payment remitted to the Securities Administrator
by the Yield Maintenance Provider under the Yield Maintenance
Agreement.
“ Yield Maintenance Provider
”: The Bank of New York.
SECTION 1.02. Accounting
.
Unless otherwise specified herein, for
the purpose of any definition or calculation, whenever amounts are
required to be netted, subtracted or added or any distributions are
taken into account such definition or calculation and any related
definitions or calculations shall be determined without duplication
of such functions.
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF CERTIFICATES
SECTION 2.01. Conveyance of
Mortgage Loans .
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 after the Cut-Off Date with respect to the Mortgage
Loans. In exchange for such transfer and assignment, the
Depositor shall receive the Certificates. The Depositor
hereby directs the Securities Administrator to execute, not in its
individual capacity, but solely as Securities Administrator on
behalf of the Trust, and deliver the Yield Maintenance Agreement.
Notwithstanding anything provided herein
to the contrary, each of the parties hereto agrees and acknowledges
that, notwithstanding the transfer, conveyance and assignment of
the Mortgage Loans from the Depositor to the Trustee pursuant to
this Agreement, the Servicing Rights Owner remains the sole and
exclusive owner of the related Servicing Rights with respect to the
Mortgage Loans.
Concurrently with the execution and
delivery of this Agreement, the Depositor does hereby assign to the
Trustee all of its rights and interest under the Mortgage Loan
Purchase Agreement, including all rights of the Seller under the
Servicing Agreement to the extent assigned in the Mortgage Loan
Purchase Agreement. The Trustee hereby accepts such
assignment, and shall be entitled to exercise all rights of the
Depositor under the Mortgage Loan Purchase Agreement and all rights
of the Seller under 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 Mortgage Loan
documents. The foregoing sale, transfer, assignment,
set-over, deposit and conveyance does not and is not intended to
result in creation or assumption by the Trustee of any obligation
of the Depositor, the Seller or any other Person in connection with
the Mortgage Loans or any other agreement or instrument relating
thereto except as specifically set forth herein.
In connection with such transfer and
assignment, (i) the Depositor directs the Trustee to appoint
Deutsche Bank National Trust Company, as Custodian, and (ii) the
Seller, on behalf of the Depositor, does hereby deliver on the
Closing Date, unless otherwise specified in this Section 2.01, to,
and deposit with the Trustee, or the Custodian as its designated
agent, the following documents or instruments with respect to each
Mortgage Loan (a “ Mortgage File ”) so
transferred and assigned:
(i)
the original Mortgage Note, endorsed
either on its face or by allonge attached thereto in blank or in
the following form: “Pay to the order of Deutsche Bank
National Trust Company, as Trustee for HarborView Mortgage Loan
Trust 2005-11, Mortgage Loan Pass-Through Certificates, Series
2005-11, without recourse”, or with respect to any lost
Mortgage Note, an original Lost Note Affidavit stating that the
original mortgage note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note; provided, however, that
such substitutions of Lost Note Affidavits for original Mortgage
Notes may occur only with respect to Mortgage Loans the aggregate
Cut-Off Date Principal Balance of which is less than or equal to 2%
of the Cut-Off Date Aggregate Principal Balance;
(ii)
except as provided below, for each
Mortgage Loan that is not a MERS Mortgage Loan, the original
Mortgage, and in the case of each MERS Mortgage Loan, the original
Mortgage, noting the presence of the MIN for that Mortgage Loan and
either language indicating that the Mortgage Loan is a MOM Loan if
the Mortgage Loan is a MOM Loan, or if such Mortgage Loan was not a
MOM Loan at origination, the original Mortgage and the assignment
to MERS, in each case with evidence of recording thereon, and the
original recorded power of attorney, if the Mortgage was executed
pursuant to a power of attorney, with evidence of recording thereon
or, if such Mortgage or power of attorney has been submitted for
recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a
copy of such Mortgage or power of attorney, as the case may be,
together with an Officer’s Certificate of the Seller
certifying that the copy of such Mortgage delivered to the Trustee
(or its Custodian) is a true copy and that the original of such
Mortgage has been forwarded to the public recording office, or, in
the case of a Mortgage that has been lost, a copy thereof
(certified as provided for under the laws of the appropriate
jurisdiction) and a written Opinion of Counsel (delivered at the
Seller’s expense) acceptable to the Trustee and the Depositor
that an original recorded Mortgage is not required to enforce the
Trustee’s interest in the Mortgage Loan;
(iii)
the original of each assumption,
modification or substitution agreement, if any, relating to the
Mortgage Loans, or, as to any assumption, modification or
substitution agreement which cannot be delivered on or prior to the
Closing Date because of a delay caused by the public recording
office where such assumption, modification or substitution
agreement has been delivered for recordation, a photocopy of such
assumption, modification or substitution agreement, pending
delivery of the original thereof, together with an Officer’s
Certificate of the Seller, title company, escrow agent or closing
attorney certifying that the copy of such assumption, modification
or substitution agreement delivered to the Trustee (or its
Custodian) on behalf of the Trust is a true copy and that the
original of such agreement has been forwarded to the public
recording office;
(iv)
in the case of each Mortgage Loan that is
not a MERS Mortgage Loan, an original Assignment of Mortgage, in
form and substance acceptable for recording. The Mortgage
shall be assigned to “Deutsche Bank National Trust Company,
as Trustee for HarborView Mortgage Loan Trust 2005-11, Mortgage
Loan Pass-Through Certificates, Series 2005-11, without
recourse;”
(v)
in the case of each Mortgage Loan that is
not a MERS Mortgage Loan, an original copy of any intervening
Assignment of Mortgage showing a complete chain of assignments, or,
in the case of an intervening Assignment of Mortgage that has been
lost, a written Opinion of Counsel (delivered at the Seller’s
expense) acceptable to the Trustee that such original intervening
Assignment of Mortgage is not required to enforce the
Trustee’s interest in the Mortgage Loans;
(vi)
the original Primary Insurance Policy, if
any, or certificate, if any;
(vii)
the original or a certified copy of
lender’s title insurance policy; and
(viii)
with respect to any Cooperative Loan, the
Cooperative Loan Documents.
In connection with the assignment of any
MERS Mortgage Loan, the Seller agrees that it will take (or shall
cause the Servicer to take), at the expense of the Seller (with the
cooperation of the Depositor, the Master Servicer and the Trustee,
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 2005-11.
With respect to each Cooperative Loan the
Seller, on behalf of the Depositor does hereby deliver to the
Trustee the related Cooperative Loan Documents and the Seller will
take (or cause the Servicer to take), at the expense of the Seller
(with the cooperation of the Depositor, the Master Servicer and the
Trustee, such actions as are necessary under applicable law
(including but not limited to the relevant UCC) in order to perfect
the interest of the Trustee in the related Mortgaged
Property.
Assignments of each Mortgage with respect
to each Mortgage Loan that is not a MERS Mortgage Loan (other than
a Cooperative Loan) shall be recorded; provided, however ,
that such assignments need not be recorded if, in the Opinion of
Counsel (which must be from Independent Counsel and not at the
expense of the Trust or the Trustee) acceptable to the Trustee,
each Rating Agency and the Master Servicer, recording in such
states is not required to protect the Trustee’s interest in
the related Mortgage Loans; provided, further ,
notwithstanding the delivery of any Opinion of Counsel, each
assignment of Mortgage shall be submitted for recording by the
Seller (or the Seller will cause the Servicer to submit each such
assignment for recording), at the cost and expense of the Seller,
in the manner described above, at no expense to the Trust or
Trustee, upon the earliest to occur of (1) reasonable direction by
the Majority Certificateholders, (2) the occurrence of a bankruptcy
or insolvency relating to the Seller or the Depositor, or (3) with
respect to any one Assignment of Mortgage, the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays
are caused by the applicable recording office), the Seller shall
properly record (or the Seller will cause the Servicer to properly
record), at the expense of the Seller (with the cooperation of the
Depositor, the Master Servicer and the Trustee (or the Custodian on
behalf of the Trustee), in each public recording office where the
related Mortgages are recorded, each assignment referred to in
Section 2.01(v) above with respect to a Mortgage Loan that is not a
MERS Mortgage Loan.
The Trustee agrees to execute and deliver
to the Depositor on or prior to the Closing Date an acknowledgment
of receipt of the original Mortgage Note for each Mortgage Loan
(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(x) above, the Seller shall deliver or
cause to be delivered to the Trustee the original or a copy of a
written commitment or interim binder or preliminary report of title
issued by the title insurance or escrow company, with the original
or a certified copy thereof to be delivered to the Trustee,
promptly upon receipt thereof, but in any case within 175 days of
the Closing Date. The Seller shall deliver or cause to be
delivered to the Trustee, promptly upon receipt thereof, any other
documents constituting a part of a Mortgage File received with
respect to any Mortgage Loan sold to the Depositor by the Seller,
including, but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
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 delivering the above documents, the Master
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, based on information provided to the
Master Servicer from the Servicer, which shall include a statement
to the effect that all amounts received in connection with such
prepayment that are required to be deposited in the Distribution
Account have been so deposited. All original documents that
are not delivered to the Trustee on behalf of the Trust shall be
held by the Master Servicer or the Servicer in trust for the
Trustee, for the benefit of the Trust and the
Certificateholders.
The Depositor herewith delivers to the
Trustee an executed copy of the Mortgage Loan Purchase
Agreement.
SECTION 2.02. Acceptance by
Trustee .
The Trustee 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 the Certificate
Insurance Policy 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 further agrees, for the
benefit of the Certificateholders, to review each Mortgage File
delivered to it and to certify and deliver to the Depositor, the
Seller and each Rating Agency an interim certification in
substantially the form attached hereto as Exhibit G-2, within 90
days after the Closing Date (or, with respect to any document
delivered after the Startup Day, within 45 days of receipt and with
respect to any Qualified Substitute Mortgage, within five Business
Days after the assignment thereof) that, as to each Mortgage Loan
listed in the Mortgage Loan Schedule (other than any Mortgage Loan
paid in full or any Mortgage Loan specifically identified in the
exception report annexed thereto as not being covered by such
certification), (i) all documents required to be delivered to
it pursuant to Section 2.01 of this Agreement are in its
possession, (ii) such documents have been reviewed by it and
have not been mutilated, damaged or torn and relate to such
Mortgage Loan and (iii) based on its examination and only as
to the foregoing, the information set forth in the Mortgage Loan
Schedule that corresponds to items (i), (ii) and (iii) of the
Mortgage Loan Schedule accurately reflects information set forth in
the Mortgage File. It is herein acknowledged that, in
conducting such review, the Trustee 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.
Upon the discovery by the Seller or the
Depositor (or upon receipt by the Trustee of written notification
of such breach) of a breach of any of the representations and
warranties made by the Seller in the Mortgage Loan Purchase
Agreement in respect of any Mortgage Loan that materially adversely
affects such Mortgage Loan or the interests of the related
Certificateholders or the Certificate Insurer in such Mortgage
Loan, the party discovering such breach shall give prompt written
notice to the other parties to this Agreement.
The Depositor and the Trustee intend that
the assignment and transfer herein contemplated constitute a sale
of the Mortgage Loans, the related Mortgage Notes and the related
documents, conveying good title thereto free and clear of any liens
and encumbrances, from the Depositor to the Trustee and that such
property not be part of the Depositor’s estate or property of
the Depositor in the event of any insolvency by the Depositor.
In the event that such conveyance is deemed to be, or to be
made as security for, a loan, the parties intend that the Depositor
shall be deemed to have granted and does hereby grant to the
Trustee a first priority perfected security interest in all of the
Depositor’s right, title and interest in and to the Mortgage
Loans, the related Mortgage Notes and the related documents, and
that this Agreement shall constitute a security agreement under
applicable law.
SECTION 2.03. Repurchase or
Substitution of Mortgage Loans by the Originators and the
Seller .
(a)
Upon its discovery or receipt of written
notice of any materially defective document in, or that a document
is missing from, a Mortgage File or of the breach by the related
Originator of any representation, warranty or covenant under the
related Purchase Agreement in respect of any Mortgage Loan which
materially adversely affects the value of that Mortgage Loan or the
interest therein of the Certificateholders or the Certificate
Insurer, 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) 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 discovery or receipt of written
notice of the breach by the Seller of any representation, warranty
or covenant under the Mortgage Loan Purchase Agreement or in
Section 2.04 or Section 2.08 hereof in respect of any Mortgage
Loan which materially adversely affects the value of that Mortgage
Loan or the interest therein of the Certificateholders or the
Certificate Insurer, the Trustee (or the Custodian as its
designated agent) shall promptly notify the Seller of such breach
and request that the Seller cure such breach within 90 days from
the date that the Seller was notified of such breach, and if the
Seller does not cure such breach in all material respects during
such period, the Trustee shall enforce the Seller’s
obligation under the Mortgage Loan Purchase Agreement and cause the
Seller to repurchase that Mortgage Loan from the Trust Fund at the
Purchase Price on or prior to the Determination Date following the
expiration of such 90 day period (subject to Section 2.03(e)
below); provided, however, that, in connection with any such breach
that could not reasonably have been cured within such 90 day
period, if the Seller shall have commenced to cure such breach
within such 90 day period, the Seller shall be permitted to proceed
thereafter diligently and expeditiously to cure the same within the
additional period provided under the Mortgage Loan Purchase
Agreement; and, provided further, that, in the case of the breach
of any representation, warranty or covenant made by the Seller in
Section 2.04 hereof, the Seller shall be obligated to cure such
breach or purchase the affected Mortgage Loans for the Purchase
Price or, if the Mortgage Loan or the related Mortgaged Property
acquired with respect thereto has been sold, then the Seller shall
pay, in lieu of the Purchase Price, any excess of the Purchase
Price over the Net Liquidation Proceeds received upon such sale.
(c)
The Purchase Price or Repurchase Price
(as defined in the 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, upon receipt of written
certification from the Master Servicer 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 shall have no further responsibility with regard to such
Mortgage File (it being understood that the Trustee shall have no
responsibility for determining the sufficiency of such assignment
for its intended purpose).
(d)
Notwithstanding anything to the contrary
set forth above and subject to (i) below, with respect to any
breach by the Seller of a representation or warranty made by the
Seller herein or in the Mortgage Loan Purchase Agreement that
materially and adversely affects the value of a Mortgage Loan or
the Mortgage Loans or the interest therein of the
Certificateholders or the Certificate Insurer, if the Seller would
not be in breach of such representation or warranty but for a
breach by an Originator of a representation and warranty made by
such Originator in the related Purchase Agreement, then such
Originator thereunder, in the manner and to the extent set forth
therein, and not the Seller, hereunder shall be required to remedy
such breach.
The Trustee shall enforce the obligations
of the Seller under the Mortgage Loan Purchase Agreement including,
without limitation, any obligation of the Seller to purchase a
Mortgage Loan on account of a breach of a representation, warranty
or covenant as described in this Section 2.03(b).
(e)
If pursuant to the provisions of Section
2.03(b), the Seller repurchases or otherwise removes from the Trust
Fund a Mortgage Loan that is a MERS Mortgage Loan, the Seller shall
take (or shall cause the Servicer to take), at the expense of the
Seller (with the cooperation of the Depositor, the Master Servicer
and the Trustee), such actions as are necessary either (i) cause
MERS to execute and deliver an Assignment of Mortgage in recordable
form to transfer the Mortgage from MERS to the Seller and shall
cause such Mortgage to be removed from registration on the
MERS® 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 Custodian, on behalf of
the Trustee, for such Qualified Substitute Mortgage Loan or Loans,
the Mortgage Note, the Mortgage, the Assignment to the Trustee, and
such other documents and agreements, with all necessary
endorsements thereon, as are required by Section 2.01 hereof,
together with an Officers’ Certificate stating that each such
Qualified Substitute Mortgage Loan satisfies the definition thereof
and specifying the Substitution Adjustment (as described below), if
any, in connection with such substitution; provided, however, that,
in the case of any Qualified Substitute Mortgage Loan that is a
MERS Mortgage Loan, the Seller shall provide such documents and
take such other action with respect to such Qualified Substitute
Mortgage Loans as are required pursuant to Section 2.01 hereof.
The Custodian, on behalf of the Trustee, shall acknowledge
receipt for such Qualified Substitute Mortgage Loan or Loans and,
within five Business Days thereafter, shall review such documents
as specified in Section 2.02 hereof and deliver to the Servicer,
with respect to such Qualified Substitute Mortgage Loan or Loans, a
certification substantially in the form attached hereto as Exhibit
G-2, with any exceptions noted thereon. Within 180 days of
the date of substitution, the Custodian, on behalf of the Trustee,
shall deliver to the Seller and the Master Servicer a certification
substantially in the form of Exhibit G-3 hereto with respect to
such Qualified Substitute Mortgage Loan or Loans, with any
exceptions noted thereon. Monthly Payments due with respect
to Qualified Substitute Mortgage Loans in the month of substitution
are not part of the Trust Fund and will be retained by the Seller.
For the month of substitution, distributions to
Certificateholders will reflect the collections and recoveries in
respect of such Deleted Mortgage Loan in the Due Period preceding
the month of substitution and the Depositor or the Seller, as the
case may be, shall thereafter be entitled to retain all amounts
subsequently received in respect of such Deleted Mortgage Loan.
The Seller shall give or cause to be given written notice to
the Certificateholders that such substitution has taken place,
shall amend the Mortgage Loan Schedule to reflect the removal of
such Deleted Mortgage Loan from the terms of this Agreement and the
substitution of the Qualified Substitute Mortgage Loan or Loans and
shall deliver a copy of such amended Mortgage Loan Schedule to the
Trustee. 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 Master Servicer for deposit in the Distribution
Account an amount equal to the related Substitution Adjustment, if
any, and the Custodian, on behalf of the Trustee, upon receipt of
the related Qualified Substitute Mortgage Loan or Loans, shall
release to the Seller the related Mortgage File or Files and shall
execute and deliver such instruments of transfer or assignment, in
each case without recourse, as the Seller shall deliver to it and
as shall be necessary to vest therein any Deleted Mortgage Loan
released pursuant hereto.
In addition, the Seller shall obtain at
its own expense and deliver to the Trustee and the Securities
Administrator 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
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 an 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 applicable Originator cure
such breach or repurchase such Mortgage Loan and if such 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.
In addition to the foregoing, within 120
days of the earlier of discovery by the Seller or receipt of notice
by the Seller of (i) the breach of any representation or warranty
of any Originator under the applicable Purchase Agreement which
materially and adversely affects the interests of the
Certificateholders or the Certificate Insurer in any of the
Mortgage Loans and for which such Originator has failed to cure
such breach in accordance with the terms of the related Purchase
Agreement and (ii)(a) the fact that such Originator is no
longer an operating company or (b) an Officers’ Certificate
certifying to the fact that such Originator is financially unable
to cure such breach pursuant to the terms of the Purchase
Agreement, the Seller shall repurchase or substitute for such
Mortgage Loan in accordance with this Section 2.03 of this
Agreement. Such obligation of the Seller shall continue until
such time that the Rating Agencies inform the Depositor and the
Seller in writing that such obligation is no longer required in
order for the Rating Agencies to maintain their then-current
ratings on the Certificates and the Certificate Insurer consents in
writing to the removal of such obligation.
SECTION 2.04. Representations
and Warranties of the Seller with Respect to the Mortgage Loans
.
The Seller hereby makes the following
representations and warranties to the Trustee on behalf of the
Certificateholders and the Certificate Insurer as of the Closing
Date with respect to the Mortgage Loans:
(i)
Each Mortgage Loan at the time it was
made complied in all material respects with applicable local,
state, and federal laws, including, but not limited to, all
applicable predatory and abusive lending laws.
(ii)
No Mortgage Loan is a “High Cost
Loan” or “Covered Loan,” as applicable, (as such
terms are defined in the then current Standard & Poor’s
LEVELS® Glossary, Appendix E, in effect as of the Closing
Date) and no Mortgage Loan originated on or after October 1, 2002
through March 6, 2003 is governed by the Georgia Fair Lending
Act;
(iii)
With respect to each representation and
warranty with respect to any Mortgage Loan made by the related
Originator in the related Purchase Agreement that is made as of the
related Closing Date (as defined in the related Purchase
Agreement), to the Seller’s knowledge, no event has occurred
since the related Closing Date (as defined in the related Purchase
Agreement) that would render such representations and warranties to
be untrue in any material respect as of the Closing Date;
and
(iv)
[Reserved].
With respect to the representations and
warranties in this Section 2.04 that are made to the Seller’s
knowledge or as to which the Seller has no knowledge, if it is
discovered by the Depositor, the Seller, the Certificate Insurer or
the Trustee that the substance of such representation and warranty
is inaccurate and such inaccuracy materially and adversely affects
the value of the related Mortgage Loan or the interest therein of
the Certificateholders then, notwithstanding the Seller’s
lack of knowledge with respect to the substance of such
representation and warranty being inaccurate at the time the
representation or warranty was made, such inaccuracy shall be
deemed a breach of the applicable representation or
warranty.
It is understood and agreed that the
representations and warranties in this Section 2.04 shall survive
delivery of the Mortgage Files to the Trustee and shall inure to
the benefit of the Certificateholders notwithstanding any
restrictive or qualified endorsement or assignment. Upon
discovery by any of the Depositor, the Seller, the Certificate
Insurer or the Trustee of a breach of any of the foregoing
representations and warranties which materially and adversely
affects the value of any Mortgage Loan or the interests therein of
the Certificateholders, 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 a related Mortgage Loan pursuant to the Mortgage Loan
Purchase Agreement constitute the sole remedies available to the
Certificateholders or to the Trustee on their behalf respecting a
breach of the representations and warranties incorporated in this
Section 2.04.
SECTION 2.05.
[Reserved].
SECTION 2.06. Representations
and Warranties of the Depositor .
The Depositor represents and warrants to
the Trustee, the Master Servicer, the Certificate Insurer and the
Securities Administrator on behalf of the Certificateholders as
follows:
(i)
this agreement constitutes a legal, valid
and binding obligation of the Depositor, enforceable against the
Depositor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors’ rights in
general an except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or
in equity);
(ii)
immediately prior to the sale and
assignment by the Depositor to the Trustee on behalf of the Trust
of each Mortgage Loan, the Depositor had good and marketable title
to each Mortgage Loan (insofar as such title was conveyed to it by
the Seller) subject to no prior lien, claim, participation
interest, mortgage, security interest, pledge, charge or other
encumbrance or other interest of any nature;
(iii)
as of the Closing Date, the Depositor has
transferred all right, title and interest in the Mortgage Loans to
the Trustee on behalf of the Trust;
(iv)
the Depositor has not transferred the
Mortgage Loans to the Trustee on behalf of the Trust with any
intent to hinder, delay or defraud any of its creditors;
(v)
the Depositor has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of Delaware, with full corporate power and authority to own
its assets and conduct its business as presently being
conducted;
(vi)
the Depositor is not in violation of its
certificate of incorporation or by-laws or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which
the Depositor is a party or by which it or its properties may be
bound, which default might result in any material adverse changes
in the financial condition, earnings, affairs or business of the
Depositor or which might materially and adversely affect the
properties or assets, taken as a whole, of the
Depositor;
(vii)
the execution, delivery and performance
of this Agreement by the Depositor, and the consummation of the
transactions contemplated hereby, do not and will not result in a
material breach or violation of any of the terms or provisions of,
or, to the knowledge of the Depositor, constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Depositor is a party or by
which the Depositor is bound or to which any of the property or
assets of the Depositor is subject, nor will such actions result in
any violation of the provisions of the certificate of incorporation
or by-laws of the Depositor or, to the best of the
Depositor’s knowledge without independent investigation, any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Depositor
or any of its properties or assets (except for such conflicts,
breaches, violations and defaults as would not have a material
adverse effect on the ability of the Depositor to perform its
obligations under this Agreement);
(viii)
to the best of the Depositor’s
knowledge without any independent investigation, no consent,
approval, authorization, order, registration or qualification of or
with any court or governmental agency or body of the United States
or any other jurisdiction is required for the issuance of the
Certificates, or the consummation by the Depositor of the other
transactions contemplated by this Agreement, except such consents,
approvals, authorizations, registrations or qualifications as (a)
may be required under State securities or “blue sky”
laws, (b) have been previously obtained or (c) the failure of which
to obtain would not have a material adverse effect on the
performance by the Depositor of its obligations under, or the
validity or enforceability of, this Agreement; and
(ix)
there are no actions, proceedings or
investigations pending before or, to the Depositor’s
knowledge, threatened by any court, administrative agency or other
tribunal to which the Depositor is a party or of which any of its
properties is the subject: (a) which if determined adversely to the
Depositor would have a material adverse effect on the business,
results of operations or financial condition of the Depositor; (b)
asserting the invalidity of this Agreement or the Certificates; (c)
seeking to prevent the issuance of the Certificates or the
consummation by the Depositor of any of the transactions
contemplated by this Agreement, as the case may be; or (d) which
might materially and adversely affect the performance by the
Depositor of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 2.07. Issuance of
Certificates .
The Trustee acknowledges the assignment
to it of the Mortgage Loans and the delivery to it of the Mortgage
Files, subject to the provisions of Sections 2.01 and 2.02
hereof, together with the assignment to it of all other assets
included in the Trust Fund, receipt of which is hereby
acknowledged. Concurrently with such assignment and delivery
and in exchange therefor, the Trustee, pursuant to the written
request of the Depositor executed by an officer of the Depositor,
has caused to be executed, authenticated and delivered to or upon
the order of the Depositor, the Certificates in authorized
denominations. The interests evidenced by the Certificates
constitute the entire beneficial ownership interest in the Trust
Fund.
SECTION 2.08. Representations
and Warranties of the Seller .
The Seller hereby represents and warrants
to the Trustee on behalf of the Certificateholders and the
Certificate Insurer that, as of the Closing Date or as of such date
specifically provided herein:
(i)
The Seller is duly organized, validly
existing and in good standing and has the power and authority to
own its assets and to transact the business in which it is
currently engaged. The Seller is duly qualified to do
business and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure
to so qualify would have a material adverse effect on (a) its
business, properties, assets or condition (financial or other), (b)
the performance of its obligations under this Agreement, or
(c) the value or marketability of the Mortgage
Loans.
(ii)
The Seller has the power and authority to
make, execute, deliver and perform this Agreement and to consummate
all of the transactions contemplated hereunder and has taken all
necessary action to authorize the execution, delivery and
performance of this Agreement which is part of its official
records. When executed and delivered, this Agreement will
constitute the Seller’s legal, valid and binding obligations
enforceable in accordance with its terms, except as enforcement of
such terms may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, moratorium or similar laws affecting
the enforcement of creditors’ rights generally and the rights
of creditors of federally insured financial institutions and by the
availability of equitable remedies, (2) general equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity or at law) or (3) public policy considerations
underlying the securities laws, to the extent that such policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from securities
laws liabilities.
(iii)
The Seller holds all necessary licenses,
certificates and permits from all governmental authorities
necessary for conducting its business as it is currently conducted.
It is not required to obtain the consent of any other party
or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority,
bureau or agency in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, except
for such consents, licenses, approvals or authorizations, or
registrations or declarations as shall have been obtained or filed,
as the case may be, prior to the Closing Date.
(iv)
The execution, delivery and performance
of this Agreement by the Seller will not conflict with or result in
a breach of, or constitute a default under, any provision of any
existing law or regulation or any order or decree of any court
applicable to the Seller or any of its properties or any provision
of its articles of incorporation, charter or by-laws, or constitute
a material breach of, or result in the creation or imposition of
any lien, charge or encumbrance upon any of its properties pursuant
to any mortgage, indenture, contract or other agreement to which it
is a party or by which it may be bound.
(v)
No certificate of an officer, written
statement or written report delivered pursuant to the terms hereof
of the Seller contains any untrue statement of a material fact or
omits to state any material fact necessary to make the certificate,
statement or report not misleading.
(vi)
The transactions contemplated by this
Agreement are in the ordinary course of the Seller’s
business.
(vii)
The Seller is not insolvent, nor will the
Seller be made insolvent by the transfer of the Mortgage Loans to
the Depositor, nor is the Seller aware of any pending insolvency of
the Seller.
(viii)
The Seller is not in violation of, and
the execution and delivery of this Agreement by the Seller and its
performance and compliance with the terms of this Agreement will
not constitute a violation with respect to, any order or decree of
any court, or any order or regulation of any federal, state,
municipal or governmental agency having jurisdiction, which
violation would materially and adversely affect the Seller’s
financial condition (financial or otherwise) or operations, or
materially and adversely affect the performance of any of its
duties hereunder.
(ix)
There are no actions or proceedings
against the Seller, or pending or, to its knowledge, threatened,
before any court, administrative agency or other tribunal; nor, to
the Seller’s knowledge, are there any investigations (i)
that, if determined adversely, would prohibit the Seller from
entering into this Agreement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this
Agreement or (iii) that, if determined adversely, would prohibit or
materially and adversely affect the Seller’s ability to
perform any of its respective obligations under, or the validity or
enforceability of, this Agreement.
(x)
The Seller did not transfer the Mortgage
Loans to the Depositor with any intent to hinder, delay or defraud
any of its creditors.
(xi)
The Seller acquired title to the Mortgage
Loans in good faith, without notice of any adverse
claims.
(xii)
The transfer, assignment and conveyance
of the Mortgage Notes and the Mortgages by the Seller to the
Depositor are not subject to the bulk transfer laws or any similar
statutory provisions in effect in any applicable
jurisdiction.
SECTION 2.09. Covenants of the
Seller .
The Seller hereby covenants that, except
for the transfer hereunder, the Seller will not sell, pledge,
assign or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any lien on any Mortgage Loan, or any
interest therein; the Seller will notify the Trustee, as assignee
of the Depositor, and the Master Servicer of the existence of any
lien on any Mortgage Loan immediately upon discovery thereof, and
the Seller will defend the right, title and interest of the
Trustee, as assignee of the Depositor, in, to and under the
Mortgage Loans, against all claims of third parties claiming
through or under the Seller; provided, however , that
nothing in this Section 2.09 shall prevent or be deemed to prohibit
the Seller from suffering to exist upon any of the Mortgage Loans
any liens for municipal or other local taxes and other governmental
charges if such taxes or governmental charges shall not at the time
be due and payable or if the Seller shall currently be contesting
the validity thereof in good faith by appropriate proceedings and
shall have set aside on its books adequate reserves with respect
thereto.
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE
LOANS
SECTION 3.01. Master Servicer
to Service and Administer the Mortgage Loans .
The Master Servicer shall supervise,
monitor and oversee the obligation of the Servicer to service and
administer the Mortgage Loans in accordance with the terms of the
Servicing Agreement and shall have full power and authority to do
any and all things which it may deem necessary or desirable in
connection with such master servicing and administration. In
performing its obligations hereunder, the Master Servicer shall act
in a manner consistent with Accepted Master Servicing Practices.
Furthermore, the Master Servicer shall oversee and consult
with the Servicer as necessary from time-to-time to carry out the
Master Servicer’s obligations hereunder, shall receive,
review and evaluate all reports, information and other data
provided to the Master Servicer by the Servicer and shall cause the
Servicer to perform and observe the covenants, obligations and
conditions to be performed or observed by the Servicer under the
Servicing Agreement. The Master Servicer shall independently
and separately monitor the Servicer’s servicing activities
with respect to each related Mortgage Loan, reconcile the results
of such monitoring with such information provided in the previous
sentence on a monthly basis and coordinate corrective adjustments
to the Servicer’s and Master Servicer’s records, and
based on such reconciled and corrected information, prepare the
Remittance Report and any other information and statements required
of the Master Servicer hereunder. Notwithstanding any
provision of this Agreement or any Servicing Agreement to the
contrary, the Master Servicer shall have no duty or obligation to
supervise, monitor or oversee the activities of, or to enforce the
obligations of the Servicer under its Servicing Agreement with
respect to any Additional Collateral, including, without
limitation, the collection of any amounts owing to the Trust Fund
in respect thereof (unless and until the Master Servicer shall have
assumed the obligations of the Servicer as successor servicer under
the Servicing Agreement pursuant to this Section 3.01, in which
case, as successor servicer, it shall be bound to serve and
administer the Additional Collateral in accordance with the
provisions of the Servicing Agreement).
The Trustee shall furnish the Servicer
and the Master Servicer with any limited powers of attorney and
other documents in form acceptable to the Trustee, necessary or
appropriate to enable the Servicer and the Master Servicer to
service and administer the related Mortgage Loans and REO Property,
which limited powers of attorney shall provide that the Trustee
will not be liable for the actions or omissions of the Servicer or
Master Servicer in exercising such powers.
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 shall execute and deliver to
the Servicer and the Master Servicer any court pleadings, requests
for trustee’s sale or other documents necessary or desirable
to (i) the foreclosure or trustee’s sale with respect to a
Mortgaged Property; (ii) any legal action brought to obtain
judgment against any Mortgagor on the Mortgage Note or Mortgage;
(iii) obtain a deficiency judgment against the Mortgagor; or (iv)
enforce any other rights or remedies provided by the Mortgage Note
or Mortgage or otherwise available at law or equity.
SECTION 3.02. REMIC-Related
Covenants .
For as long as any REMIC created
hereunder shall exist, the Trustee and the Securities Administrator
shall act in accordance herewith to assure continuing treatment of
such REMIC as a REMIC, and the Trustee and the Securities
Administrator shall comply with any directions of the Depositor,
the Servicer or the Master Servicer to assure such continuing
treatment. In particular, the Trustee shall not (a) sell or
permit the sale of all or any portion of the Mortgage Loans or of
any investment of deposits in an Account unless such sale is as a
result of a repurchase of the Mortgage Loans pursuant to this
Agreement or the Trustee has received a REMIC Opinion prepared at
the expense of the Trust; and (b) other than with respect to a
substitution pursuant to the Mortgage Loan Purchase Agreement or
Section 2.04 of this Agreement, as applica
