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 October 1, 2005
__________________________________
HarborView Mortgage Loan Trust
2005-14
Mortgage Loan Pass-Through Certificates,
Series 2005-14
Table of
Contents
Page
ARTICLE I
DEFINITIONS; DECLARATION OF TRUST
SECTION 1.01. Defined Terms.
8
SECTION 1.02. Accounting.
49
ARTICLE II
CONVEYANCE OF MORTGAGE LOANS;
ORIGINAL ISSUANCE OF
CERTIFICATES
SECTION 2.01. Conveyance of Mortgage
Loans.
49
SECTION 2.02. Acceptance by
Trustee.
54
SECTION 2.03. Repurchase or Substitution
of Mortgage Loans by the Originators and the
Seller.
55
SECTION 2.04. Representations and
Warranties of the Seller with Respect to the Mortgage
Loans.
58
SECTION 2.05. [Reserved].
59
SECTION 2.06. Representations and
Warranties of the Depositor.
59
SECTION 2.07. Issuance of
Certificates.
61
SECTION 2.08. Representations and
Warranties of the Seller.
61
SECTION 2.09. Covenants of the
Seller.
63
ARTICLE III
ADMINISTRATION AND MASTER SERVICING OF THE MORTGAGE
LOANS
SECTION 3.01. Master Servicer to Service
and Administer the Mortgage Loans.
63
SECTION 3.02. REMIC-Related
Covenants.
64
SECTION 3.03. Monitoring of
Servicers.
65
SECTION 3.04. Fidelity Bond.
67
SECTION 3.05. Power to Act;
Procedures.
67
SECTION 3.06. Due-on-Sale Clauses;
Assumption Agreements.
68
SECTION 3.07. Release of Mortgage
Files.
68
SECTION 3.08. Documents, Records and
Funds in Possession of Master Servicer to be
Held for Trust.
69
SECTION 3.09. Standard Hazard Insurance
and Flood Insurance Policies
70
SECTION 3.10. Presentment of Claims and
Collection of Proceeds.
70
SECTION 3.11. Maintenance of the Primary
Insurance Policies.
71
SECTION 3.12. Trustee to Retain
Possession of Certain Insurance Policies and
Documents.
71
SECTION 3.13. Realization Upon Defaulted
Mortgage Loans.
72
SECTION 3.14. Additional Compensation to
the Master Servicer.
72
SECTION 3.15. REO Property.
72
SECTION 3.16. Annual Officer’s
Certificate as to Compliance.
73
SECTION 3.17. Annual Independent
Accountant’s Servicing Report.
73
SECTION 3.18. Reports Filed with
Securities and Exchange Commission.
74
SECTION 3.19. [Reserved].
75
SECTION 3.20. [Reserved].
75
SECTION 3.21. [Reserved.].
75
SECTION 3.22. [Reserved.].
75
SECTION 3.23. Closing Opinion of
Counsel.
75
SECTION 3.24. Liabilities of the Master
Servicer.
75
SECTION 3.25. Merger or Consolidation of
the Master Servicer.
75
SECTION 3.26. Indemnification of the
Trustee, the Master Servicer and the Securities
Administrator.
76
SECTION 3.27. Limitations on Liability of
the Master Servicer and Others.
76
SECTION 3.28. Master Servicer Not to
Resign.
78
SECTION 3.29. Successor Master
Servicer.
78
SECTION 3.30. Sale and Assignment of
Master Servicing.
78
ARTICLE IV
ACCOUNTS
SECTION 4.01. Servicing
Accounts
79
SECTION 4.02. Distribution
Account.
80
SECTION 4.03. Permitted Withdrawals and
Transfers from the Distribution Account.
82
SECTION 4.04. Yield Maintenance
Account.
83
SECTION 4.05. Reference Banks
85
ARTICLE V
FLOW OF FUNDS
SECTION 5.01. Distributions.
85
SECTION 5.02. [Reserved].
90
SECTION 5.03. Allocation of Realized
Losses.
90
SECTION 5.04. Statements.
92
SECTION 5.05. Remittance Reports;
Advances.
94
SECTION 5.06. Compensating Interest
Payments.
95
SECTION 5.07. Basis Risk Reserve
Fund.
95
SECTION 5.08. Recoveries.
96
ARTICLE VI
THE CERTIFICATES
SECTION 6.01. The
Certificates.
96
SECTION 6.02. Registration of Transfer
and Exchange of Certificates.
98
SECTION 6.03. Mutilated, Destroyed, Lost
or Stolen Certificates.
106
SECTION 6.04. Persons Deemed
Owners.
106
SECTION 6.05. Appointment of Paying
Agent.
106
ARTICLE VII
DEFAULT
SECTION 7.01. Events of
Default.
107
SECTION 7.02. Trustee to Act.
109
SECTION 7.03. Waiver of Event of
Default.
110
SECTION 7.04. Notification to
Certificateholders.
110
ARTICLE VIII
THE TRUSTEE AND THE SECURITIES ADMINISTRATOR
SECTION 8.01. Duties of the Trustee and
the Securities Administrator.
110
SECTION 8.02. Certain Matters Affecting
the Trustee and the Securities Administrator.
112
SECTION 8.03. Trustee and Securities
Administrator Not Liable for Certificates or
Mortgage Loans.
113
SECTION 8.04. Trustee, Custodian, Master
Servicer and Securities Administrator May
Own Certificates.
114
SECTION 8.05. Trustee’s and
Securities Administrator’s Fees and Expenses.
114
SECTION 8.06. Eligibility Requirements
for Trustee and Securities Administrator.
115
SECTION 8.07. Resignation or Removal of
Trustee and Securities Administrator.
115
SECTION 8.08. Successor Trustee and
Successor Securities Administrator.
116
SECTION 8.09. Merger or Consolidation of
Trustee or Securities Administrator.
117
SECTION 8.10. Appointment of Co-Trustee
or Separate Trustee
117
SECTION 8.11. Limitation of
Liability.
118
SECTION 8.12. Trustee May Enforce Claims
Without Possession of Certificates.
118
SECTION 8.13. Suits for
Enforcement.
119
SECTION 8.14. Waiver of Bond
Requirement.
119
SECTION 8.15. Waiver of Inventory,
Accounting and Appraisal Requirement
119
SECTION 8.16.
Appointment of Custodians
119
ARTICLE IX
REMIC ADMINISTRATION
SECTION 9.01. REMIC
Administration.
120
SECTION 9.02. Prohibited Transactions and
Activities.
122
ARTICLE X
TERMINATION
SECTION 10.01. Termination.
122
SECTION 10.02. Additional Termination
Requirements.
125
ARTICLE XI
[RESERVED]
ARTICLE XII
MISCELLANEOUS PROVISIONS
SECTION 12.01. Amendment.
125
SECTION 12.02. Recordation of Agreement;
Counterparts.
126
SECTION 12.03. Limitation on Rights of
Certificateholders.
127
SECTION 12.04. Governing Law.
127
SECTION 12.05. Notices.
128
SECTION 12.06. Severability of
Provisions.
128
SECTION 12.07. Article and Section
References.
128
SECTION 12.08. Notices to the Rating
Agencies.
129
SECTION 12.09. Further
Assurances.
130
SECTION 12.10. Benefits of
Agreement.
130
SECTION 12.11. Acts of
Certificateholders.
130
SECTION 12.12. Successors and
Assigns.
131
SECTION 12.13. Tax Treatment of Class P
Certificate.
131
SECTION 12.14. Provision of
Information.
131
EXHIBITS AND SCHEDULES
:
Exhibit A-1
Form of Class A Certificate
A-1
Exhibit A-2
Form of Class X Certificate
A-2
Exhibit B
Form of Class A-R Certificate
B-1
Exhibit C
Form of Subordinate
Certificate
C-1
Exhibit D-1
Form of Class P Certificate
D-1-1
Exhibit D-2
[Reserved]
D-2-1
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
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 [Class A-R]
Certificate Pursuant to
Section 6.02
L-1
Exhibit M
List of Servicing Agreements
M-1
Schedule I
Mortgage Loan Schedule
Schedule II
Yield Maintenance Payments
This Pooling and Servicing Agreement is
dated as of October 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 2005-14 Mortgage Loan Pass-Through Certificates, Series
2005-14 (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 nineteen classes of certificates,
designated as (i) the Class 1-A-1A Certificates, (ii) the Class
1-A-1B Certificates, (iii) the Class 2-A-1A Certificates, (iv) the
Class 2-A-1B Certificates, (v) the Class 3-A-1A Certificates, (vi)
the Class 3-A-1B Certificates, (vii) the Class 4-A-1A Certificates,
(viii) the Class 4-A-1B Certificates, (ix) the Class 5-A-1A
Certificates, (x) the Class 5-A-1B Certificates, (xi) the Class X,
(xii) the Class A-R Certificates, (xiii) the Class B-1
Certificates, (xiv) the Class B-2 Certificates, (xv) the Class B-3
Certificates, (xvi) the Class B-4 Certificates, (xvii) the Class
B-5 Certificates, (xviii) the Class B-6 Certificates, (xix) the
Class A-R-II Certificates and (xx) the Class P
Certificate.
As provided herein, the Trustee shall
elect that the Trust Fund 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 P, Class A-R and Class A-R-II
Certificates, shall represent ownership of a regular interest in
the Upper-Tier REMIC, as described herein. 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 each
of the Middle-Tier REMIC and the Upper-Tier REMIC.
The Lower-Tier REMIC shall hold as assets
all property of the Trust Fund other than the interests in any
REMIC formed hereby. The Middle-Tier REMIC shall hold as
assets the uncertificated Lower-Tier REMIC 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 REMIC 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 Class Principal Amount for
each Class of Lower-Tier REMIC Interest:
|
Lower-Tier REMIC
Class
Designation
|
Interest Rate
|
Initial Class
Principal
Balance
|
Related Loan Group
|
|
LT-Group 1
|
(1)
|
(7)
|
Group 1
|
|
LT-SC1
|
(1)
|
(6)
|
Group 1
|
|
LT-Group 2
|
(2)
|
(7)
|
Group 2
|
|
LT-SC2
|
(2)
|
(6)
|
Group 2
|
|
LT-Group 3
|
(3)
|
(7)
|
Group 3
|
|
LT-SC3
|
(3)
|
(6)
|
Group 3
|
|
LT-Group 4
|
(4)
|
(7)
|
Group 4
|
|
LT-SC4
|
(4)
|
(6)
|
Group 4
|
|
LT-Group 5
|
(5)
|
(7)
|
Group 5
|
|
LT-SC5
|
(5)
|
(6)
|
Group 5
|
|
LT-R
|
(8)
|
(8)
|
N/A
|
__________________
(1)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for these
Lower-Tier Interests will be a per annum rate equal to the Net WAC
for Loan Group 1.
(2)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for these
Lower-Tier Interests will be a per annum rate equal to the Net WAC
for Loan Group 2.
(3)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for these
Lower-Tier Interests will be a per annum rate equal to the Net WAC
for Loan Group 3.
(4)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for these
Lower-Tier Interests will be a per annum rate equal to the Net WAC
for Loan Group 4.
(5)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for these
Lower-Tier Interests will be a per annum rate equal to the Net WAC
for Loan Group 5.
(6)
The initial class principal balance
with respect to these Lower-Tier Interests will be the product of
(i) 1% and (ii) the Subordinate Component of the Loan Group to
which such Lower-Tier Interest is related.
(7)
The initial class principal balance
with respect to these Lower-Tier Interests will be the excess of
(i) the Loan Group Balance of the Loan Group to which such
Lower-Tier Interest is related over (ii) the initial class
principal balance of the Lower-Tier Interest bearing the
designation “SC” and the number of the Loan Group to
which such Lower-Tier Interest is related.
(8)
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, the Available
Funds for each Loan Group distributable as interest shall be
distributed as interest with respect to the Lower-Tier REMIC
Interests based on the interest rates described above. On
each Distribution Date, Net Interest Shortfalls attributable to any
Loan Group shall be allocated among the related Lower-Tier REMIC
Interests based on the relative amounts of interest otherwise
accrued for the related Accrual Period on each such Lower-Tier
REMIC Interest.
On each Distribution Date, the remaining
Available Funds for each Loan Group shall be distributed as
principal on the Lower-Tier REMIC Interests as follows:
(i)
First, to the LT-SC1 Interest until the
principal balance of such Lower-Tier Interest equals one percent of
the Subordinate Component for Loan Group 1 for the next succeeding
Distribution Date;
(ii)
Second, to the LT-SC2 Interest until the
principal balance of such Lower-Tier Interest equals one percent of
the Subordinate Component for Loan Group 2 for the next succeeding
Distribution Date;
(iii)
Third, to the LT-SC3 Interest until the
principal balance of such Lower-Tier Interest equals one percent of
the Subordinate Component for Loan Group 3 for the next succeeding
Distribution Date;
(iv)
Fourth, to the LT-SC4 Interest until the
principal balance of such Lower-Tier Interest equals one percent of
the Subordinate Component for Loan Group 4 for the next succeeding
Distribution Date;
(v)
Fifth, to the LT-SC5 Interest until the
principal balance of such Lower-Tier Interest equals one percent of
the Subordinate Component for Loan Group 5 for the next succeeding
Distribution Date;
(vi)
Sixth, to the LT-SC1, the LT-SC2, the
LT-SC3, the LT-SC4, or the LT-SC5 Interests the minimum amount
necessary to cause the ratio of the principal balance of each such
Lower-Tier Interest to the other four such Lower-Tier Interests to
equal the ratio of the Subordinate Component related to such
Lower-Tier Interest to the Subordinate Components related to the
other four Lower-Tier Interests.
(vii)
Seventh, to the LT-Group 1, the LT-Group
2, the LT-Group 3, the LT-Group 4, and the LT-Group 5 Interests as
follows:
a.
To the LT-Group 1 Interest until its
principal balance equals the difference between (I) the Loan Group
Balance of Loan Group 1 on such Distribution Date, minus
(II) the principal balance of the LT-SC1 Interest on such
Distribution Date, taking into account the distributions under
priorities (i) through (vi) above, and
b.
To the LT-Group 2 Interest until its
principal balance equals the difference between (I) the Loan Group
Balance of Loan Group 2 on such Distribution Date, minus
(II) the principal balance of the LT-SC2 Interest on such
Distribution Date, taking into account the distributions under
priorities (i) through (vi) above, and
c.
To the LT-Group 3 Interest until its
principal balance equals the difference between (I) the Loan Group
Balance of Loan Group 3 on such Distribution Date, minus
(II) the principal balance of the LT-SC3 Interest on such
Distribution Date, taking into account the distributions under
priorities (i) through (vi) above, and
d.
To the LT-Group 4 Interest until its
principal balance equals the difference between (I) the Loan Group
Balance of Loan Group 4 on such Distribution Date, minus
(II) the principal balance of the LT-SC4 Interest on such
Distribution Date, taking into account the distributions under
priorities (i) through (vi) above, and
e.
To the LT-Group 5 Interest until its
principal balance equals the difference between (I) the Loan Group
Balance of Loan Group 5 on such Distribution Date, minus
(II) the principal balance of the LT-SC5 Interest on such
Distribution Date, taking into account the distributions under
priorities (i) through (vi) above, and
On each Distribution Date, Realized
Losses attributable to principal, with respect to any Loan Group
shall be allocated among the Lower-Tier Interests in the same
manner that principal is distributed among such Lower-Tier
Interests.
Middle-Tier REMIC
Interests
The following table sets forth (or
describes) the Class designation, interest rate, and initial Class
Principal Amount for each Class of Middle-Tier
Interests:
|
Middle-Tier
REMIC Interest
Designation
|
Interest Rate
|
Initial Class
Principal Amount
|
Corresponding Class of Certificate(s)
|
|
MT-1A1A
|
(1)
|
$ 65,550,000.00
|
1-A-1A, X
|
|
MT-1A1B
|
(1)
|
$ 4,558,000.00
|
1-A-1B, X
|
|
MT-2A1A
|
(2)
|
$ 97,595,100.00
|
2-A-1A, A-R
|
|
MT-2A1B
|
(2)
|
$ 6,785,000.00
|
2-A-1B
|
|
MT-3A1A
|
(3)
|
$ 126,058,000.00
|
3-A-1A
|
|
MT-3A1B
|
(3)
|
$ 8,763,000.00
|
3-A-1B
|
|
MT-4A1A
|
(4)
|
$ 119,491,000.00
|
4-A-1A
|
|
MT-4A1B
|
(4)
|
$ 8,307,000.00
|
4-A-1B
|
|
MT-5A1A
|
(5)
|
$ 389,491,080.00
|
5-A-1A
|
|
MT-5A1B
|
(5)
|
$ 27,076,920.00
|
5-A-1B
|
|
MT-B1
|
(6)
|
$ 21,000,000.00
|
B-1
|
|
MT-B2
|
(6)
|
$ 13,695,000.00
|
B-2
|
|
MT-B3
|
(6)
|
$ 8,217,000.00
|
B-3
|
|
MT-B4
|
(6)
|
$ 5,934,000.00
|
B-4
|
|
MT-B5
|
(6)
|
$ 6,847,000.00
|
B-5
|
|
MT-B6
|
(6)
|
$ 3,654,084.73
|
B-6
|
|
MT-R
|
(7)
|
(7)
|
MT-R
|
__________________
(1)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for this
Middle-Tier Interest will be a per annum rate equal to the Net WAC
for Loan Group 1.
(2)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for this
Middle-Tier Interest will be a per annum rate equal to the Net WAC
for Loan Group 2.
(3)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for this
Middle-Tier Interest will be a per annum rate equal to the Net WAC
for Loan Group 3.
(4)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for this
Middle-Tier Interest will be a per annum rate equal to the Net WAC
for Loan Group 4.
(5)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for this
Middle-Tier Interest will be a per annum rate equal to the
Net WAC for Loan Group 5.
(6)
The interest rate with respect to
any Distribution Date (and the related Accrual Period) for each of
these Middle-Tier Interests will be a per annum rate equal to the
weighted average of the interest rates payable on the LT-SC1,
LT-SC2, LT-SC3, LT-SC4, and LT-SC5 Lower-Tier Interests, weighted
based on the principal balances of each such Lower-Tier
Interest.
(7)
The MT-R Interest is the sole class
of residual interest in the Middle-Tier REMIC. It does not
have a principal balance and does not bear interest.
On each Distribution Date, the Available
Distribution Amount distributable with respect to the Lower-Tier
Interests as interest shall be distributed as interest with respect
to the Middle-Tier Interests based on the interest rates described
above. On each Distribution Date, Interest Shortfalls shall
be allocated among the related Middle-Tier Interests based on the
relative amounts of interest otherwise accrued for the related
Accrual Period on each such Middle-Tier Interest.
On each Distribution Date, the remaining
Available Distribution Amount distributable to the Lower-Tier
Interests as principal shall be distributed to the Middle-Tier
Interests as follows:
(i)
first , pro rata , to each of the MT-1A1A and
MT-1A1B Middle-Tier Interests until the principal balance of each
equals the Class Certificate Principal Balance of the Class 1-A-1A
and Class 1-A-1B Certificates, respectively;
(ii)
second , pro rata , to the MT-2A1A and MT-2A1B
Middle-Tier Interests until the principal balance of each equals
the sum of the Class Certificate Principal Balance of its
Corresponding Class(es) of Certificates;
(iii)
third , pro rata , to the MT-3A1A and MT-3A1B
Middle-Tier Interests until the principal balance of each equals
the Class Certificate Principal Balance of its Corresponding Class
of Certificates;
(iv)
fourth , pro rata , to the MT-4A1A and MT-4A1B
Middle-Tier Interests until the principal balance of each equals
the Class Certificate Principal Balance of its Corresponding Class
of Certificates;
(v)
fifth , pro rata , to the MT-5A1A and MT-5A1B
Middle-Tier Interests until the principal balance of each equals
the Class Certificate Principal Balance of its Corresponding Class
of Certificates;
(vi)
fifth , to the MT-B1 Interest until its principal balance
equals the Class Certificate Principal Balance of the Class B-1
Certificate;
(vii)
sixth , to the MT-B2 Interest until its principal balance
equals the Class Certificate Principal Balance of the Class B-2
Certificate;
(viii)
seventh , to the MT-B3 Interest until its principal balance
equals the Class Certificate Principal Balance of the Class B-3
Certificate;
(ix)
eighth , to the MT-B4 Interest until its principal balance
equals the Class Principal Amount of the Class B-4
Certificate;
(x)
ninth , to the MT-B5 Interest until its principal balance
equals the Class Certificate Principal Balance of the Class B-5
Certificate;
(xi)
tenth , to the MT-B6 Interest until its principal balance
equals the Class Certificate Principal Balance of the Class B-6
Certificate; and
(xii)
finally , to the MT-R Interest, any remaining
amounts.
On each Distribution Date, Realized
Losses with respect to the Lower-Tier Interests shall be allocated
among the Middle-Tier Interests after taking into account principal
distributions set forth above, and in the same order of priority in
which principal is distributed.
The Certificates
The following table sets forth (or
describes) the Class designation, Pass-Through Rate, and Original
Class Certificate Principal Balance (or Original Class 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, Class A-R-II and Class P
Certificates, is hereby designated as representing ownership of
regular interests in the Upper-Tier REMIC.
|
Class
|
Original Class Certificate Principal
Balance or Class Certificate Notional Amount
|
Pass-Through
Rate
|
|
Class 1-A-1A
|
$65,550,000
|
(1)
|
|
Class 1-A-1B
|
$4,558,000
|
(1)
|
|
Class 2-A-1A
|
$97,595,000
|
(1)
|
|
Class 2-A-1B
|
$6,785,000
|
(1)
|
|
Class 3-A-1A
|
$126,058,000
|
(1)
|
|
Class 3-A-1B
|
$8,763,000
|
(1)
|
|
Class 4-A-1A
|
$119,491,000
|
(1)
|
|
Class 4-A-1B
|
$8,307,000
|
(1)
|
|
Class 5-A-1A
|
$389,491,080
|
(1)
|
|
Class 5-A-1B
|
$27,076,920
|
(1)
|
|
Class X
|
Notional Amount (2)
|
(1)
|
|
Class A-R
|
$100
|
(1)
|
|
Class B-1
|
$21,000,000
|
(1)
|
|
Class B-2
|
$13,695,000
|
(1)
|
|
Class B-3
|
$8,217,000
|
(1)
|
|
Class B-4
|
$5,934,000
|
(1)
|
|
Class B-5
|
$6,847,000
|
(1)
|
|
Class B-6
|
$3,654,085
|
(1)
|
|
Class P
|
(3)
|
(3)
|
|
Class A-R-II
|
(4)
|
(4)
|
____________
(1)
Calculated pursuant to
the definition of “Pass-Through Rate.”
(2)
The Class X Certificates
will not receive any distributions of principal. Interest
will accrue on the Class Certificate Notional Balance.
(3)
The Class P Certificate
is entitled to receive the “Class P Distributable
Amount.”
(4)
For purposes of the REMIC
provisions, the Class A-R-II Certificate represents ownership of
the 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 a Servicer), or
(y) as provided in the applicable Servicing Agreement, to the
extent applicable to any 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 Lower-Tier Interest or
Middle-Tier Interest, the calendar month immediately preceding the
month of that Distribution Date. With respect to each
Distribution Date and the LIBOR Certificates, the period beginning
on the immediately preceding Distribution Date (or Closing Date in
the case of the first Distribution Date) and ending on the date
immediately preceding such Distribution Date. Interest on the
LIBOR Certificates shall be calculated on the basis of a 360-day
year and the actual number of days elapsed in the related Accrual
Period; in the case of the other Classes of Certificates (and the
Lower-Tier Interests and Middle-Tier Interests), interest shall be
calculated based on an assumption that each month has 30 days and
each year has 360 days.
“ Accrued Interest Amount
”: For any Distribution Date and for any
Undercollateralized Group, an amount equal to one month’s
interest on the applicable Principal Deficiency Amount at the Net
WAC of the applicable Loan Group, plus any interest accrued on such
Undercollateralized Group remaining unpaid from prior Distribution
Dates.
“ Additional
Collateral ”: Any real or personal property,
securities, cash, instruments, contracts or other documents
constituting or evidencing collateral pledged as additional
security for a Mortgage Loan (other than the Mortgaged
Property).
“ Additional Collateral Mortgage
Loan ”: Each Mortgage Loan identified as such in
the Mortgage Loan Schedule and as to which Additional Collateral is
then required to be provided as security therefor.
“ 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 ”: As
to any Mortgage Loan or REO Property, any advance made by the
Master Servicer in respect of any Distribution Date pursuant to
Section 5.05.
“ Adverse REMIC Event
”: Either (i) loss of status as a REMIC, within the
meaning of Section 860D of the Code, for any group of assets
identified as a REMIC in the Preliminary Statement to this
Agreement, or (ii) imposition of any tax, including the tax imposed
under Section 860F(a)(1) on prohibited transactions, and the tax
imposed under Section 860G(d) on certain contributions to a REMIC,
on any REMIC created hereunder to the extent such tax would be
payable from assets held as part of the Trust Fund.
“ Affiliate ”:
With respect to any Person, any other Person controlling,
controlled by or under common control with such Person. For
purposes of this definition, “control” means the power
to direct the management and policies of a Person, directly or
indirectly, whether through ownership of voting securities, by
contract or otherwise and “controlling” and
“controlled” shall have meanings correlative to the
foregoing.
“ Aggregate 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 October 1,
2005, as amended, supplemented and otherwise modified from time to
time.
“ Applicable Credit Support
Percentage ”: As defined in Section
5.01(e).
“ Apportioned Principal
Balance ”: As to any Class of Subordinate Certificates, a
Loan Group and any Distribution Date, the Class Certificate
Principal Balance of such Class immediately prior to such
Distribution Date multiplied by a fraction, the numerator of which
is the Subordinate Component for the related Loan Group for such
date and the denominator of which is the sum of the Subordinate
Components (in the aggregate).
“ Assignment ”:
As to any Mortgage, an assignment of mortgage, notice of
transfer or equivalent instrument, in recordable form, which is
sufficient, under the laws of the jurisdiction in which the related
Mortgaged Property is located, to reflect or record the sale of
such Mortgage.
“ Available Funds ”:
As to any Distribution Date and 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 (including 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 Servicers pursuant to the related
Servicing Agreements and Compensating Interest Payments deposited
in the Distribution Account for that Distribution Date in respect
of the Mortgage Loans 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 Servicers 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 (w) the Expense Fees for that Distribution
Date in respect of the Mortgage Loans in that Loan Group, (x)
amounts in reimbursement for Advances previously made in respect of
the Mortgage Loans in that Loan Group and other amounts as to which
the Servicers, the Securities Administrator and the Master Servicer
are entitled to be reimbursed pursuant to Section 4.03, (y) the
amount payable to the Trustee, the Master Servicer, the Custodian
or the Securities Administrator pursuant to Sections 3.26(b),
3.27(c) and 8.05 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 and (z) amounts deposited in the
Distribution Account in error in respect of the Mortgage Loans in
that Loan Group.
“ Bankruptcy Code ”:
The Bankruptcy Reform Act of 1978 (Title 11 of the United
States Code), as amended.
“ Base Value ”:
With respect to any Mortgage Loan for which Additional
Collateral has been pledged, the original principal balance of the
Mortgage Loan less the maximum principal balance permitted with
respect to such Mortgage Loan in accordance with the applicable
underwriting guidelines.
“ 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 and Class 1-A-1B 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 Massachusetts, the State of
Minnesota, 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
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 such LIBOR Determination
Date.
(a)
If on such a LIBOR Determination Date,
the BBA’s Interest Settlement Rate does not appear on the
Telerate Page 3750 as of 11:00 a.m. (London time), or if the
Telerate Page 3750 is not available on such date, the Securities
Administrator will obtain such rate from Reuters’ “page
LIBOR 01” or Bloomberg’s page “BBAM.”
If such rate is not published for such LIBOR Determination
Date, Certificate 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 Certificate 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.
“ 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.
“ 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 X, Class P and Class A-R-II) 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.
“ 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 3-A-1A
Certificate ”: Any of the Class 3-A-1A Certificates
as designated on the face thereof, executed by the Securities
Administrator and authenticated and delivered by the Certificate
Registrar, substantially in the form annexed hereto as Exhibit A-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 3-A-1B Certificate
”: Any of the Class 3-A-1B Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-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 4-A-1A Certificate
”: Any of the Class 4-A-1A Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-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 4-A-1B Certificate
”: Any of the Class 4-A-1B Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-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 5-A-1A Certificate
”: Any of the Class 5-A-1A Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-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 5-A-1B Certificate
”: Any of the Class 5-A-1B Certificates as designated
on the face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-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 Securities
Administrator, 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 each 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Securities Administrator 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 Class Certificate
Principal Balance of the Class 1-A-1A and Class 1-A-1B Certificates
immediately prior to such Distribution Date.
“ Class Certificate Principal
Balance ”: As to any Distribution Date, with
respect to any Class of Certificates (other than the Class X, Class
P 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 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.
“ 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 Securities Administrator and authenticated
and delivered by the Certificate Registrar, substantially in the
form annexed hereto as Exhibit D-1, 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 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 immediately before such Distribution Date.
“ Class X Certificate
”: Any of the Class X Certificates as designated on the
face thereof, executed by the Securities Administrator and
authenticated and delivered by the Certificate Registrar,
substantially in the form annexed hereto as Exhibit A-2, evidencing
the ownership of a “regular interest” in the Upper Tier
REMIC created hereunder and representing the right to distributions
as set forth herein and therein.
“ Close of Business
”: As used herein, with respect to any Business Day and
location, 5:00 p.m. at such location.
“ Closing Date ”:
October 31, 2005.
“ Code ”: The
Internal Revenue Code of 1986, as amended.
“ Commission ”:
U.S. Securities and Exchange Commission.
“ Compensating Interest
Payment ”: With respect to any Distribution Date,
an amount equal to the amount, if any, by which (x) the aggregate
amount of any Interest Shortfalls (excluding for such purpose all
shortfalls as a result of Relief Act Reductions) required to be
paid by the Servicers pursuant to the related Servicing Agreement
with respect to such Distribution Date, exceeds (y) the aggregate
amount actually paid by the Servicers in respect of such
shortfalls; provided, that such amount, to the extent
payable by the Master Servicer, shall not exceed the aggregate
Master Servicing Fee that would be payable to the Master Servicer
in respect of such Distribution Date without giving effect to any
Compensating Interest Payment.
“ Cooperative Corporation
”: The entity that holds title (fee or an acceptable
leasehold estate) to the real property and improvements
constituting the Cooperative Property and which governs the
Cooperative Property, which Cooperative Corporation must qualify as
a Cooperative Housing Corporation under Section 216 of the
Code.
“ Cooperative Loan ”:
Any Mortgage Loan secured by Cooperative Shares and a
Proprietary Lease.
“ Cooperative Loan Documents
”: 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, CA 92705,
Attention: HarborView 2005-14 (GC0514), 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., 6th Street and Marquette Avenue, Minneapolis, Minnesota
55479, Attention: Corporate Trust, HarborView Mortgage Loan Trust
2005-14.
“ Corresponding Class
”: With respect to each class of Middle-Tier Interests,
the Class or Classes of Certificates so designated in the
Preliminary Statement.
“ Countrywide ”:
Countrywide Home Loans, Inc., and its successors and assigns, in
its capacity as Originator of the Countrywide Mortgage
Loans.
“ Countrywide Mortgage Loans
”: The Mortgage Loans for which Countrywide is listed
as “Originator” on the Mortgage Loan
Schedule.
“ Countrywide Purchase
Agreement ”: Solely with respect to the Countrywide
Mortgage Loans, the Mortgage Loan Purchase and Servicing Agreement,
dated as of April 1, 2003, as amended by that certain Amendment
Number One, dated as of November 1, 2004, between GCFP, as
purchaser, and Countrywide, as seller, as the same may be amended
from time to time, and any assignments and conveyances related to
the Countrywide Mortgage Loans.
“ Custodian ”:
Deutsche Bank National Trust Company, Mellon Trust and The
Bank of New York, and in each case, its successors acting as
custodian of the Mortgage Files, as indicated on the Mortgage Loan
Schedule.
“ Cut-Off Date ”:
With respect to any Mortgage Loan other than a Qualified
Substitute Mortgage Loan, the Close of Business in New York City on
October 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 all of the Mortgage Loans.
“ Cut-Off Date Principal
Balance ”: With respect to any Mortgage Loan, the
principal balance thereof remaining to be paid, after application
of all scheduled principal payments due on or before the Cut-Off
Date whether or not received as of the Cut-Off Date (or as of the
applicable date of substitution with respect to a Qualified
Substitute Mortgage Loan).
“ Debt Service Reduction
”: With respect to any Mortgage Loan, a reduction in
the scheduled Monthly Payment for that Mortgage Loan by a court of
competent jurisdiction in a proceeding under the Bankruptcy Code,
unless the reduction results from a Deficient Valuation.
“ Deficient Valuation
”: With respect to any Mortgage Loan, a valuation of
the related Mortgaged Property by a court of competent jurisdiction
in an amount less than the then outstanding principal balance of
the Mortgage Loan, which valuation results from a proceeding
initiated under the Bankruptcy Code.
“ Definitive Certificates
”: Any Certificate evidenced by a Physical Certificate
and any Certificate issued in lieu of a Book-Entry Certificate
pursuant to Section 6.02(c) or (d) hereof.
“ Deleted Mortgage Loan
”: A Mortgage Loan replaced or to be replaced by one or
more Qualified Substitute Mortgage Loans.
“ Delinquent ”:
Any Mortgage Loan with respect to which the Monthly Payment
due on a Due Date is not made.
“ Depositor ”:
Greenwich Capital Acceptance, Inc., a Delaware corporation,
or any successor in interest.
“ Depository ”:
The initial Depository shall be The Depository Trust Company,
whose nominee is Cede & Co., or any other organization
registered as a “clearing agency” pursuant to Section
17A of the 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 related Servicing
Agreement, on which the related 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 it is
servicing.
“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 a Servicer on
behalf of the Trustee) shall not be considered to Directly Operate
an REO Property solely because the Trustee (or a 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 the Residual
Certificate by such Person may cause the Trust Fund or any Person
having an ownership interest in any Class of Certificates (other
than such Person) to incur liability for any federal tax imposed
under the Code that would not otherwise be imposed but for the
transfer of an ownership interest in the Residual Certificate to
such Person.
“ 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 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
2005-14, Mortgage Loan Pass-Through Certificates, Series
2005-14” 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 November 2005.
“ Distribution Date
Statement ”: As defined in Section 5.04(a)
hereof.
“ Downey ”: Downey
Savings and Loan Association, F.A., and its successors and assigns,
in its capacity as Originator of the Downey Mortgage
Loans.
“ Downey Mortgage Loans
”: The Mortgage Loans for which Downey is listed as
“Originator” on the Mortgage Loan Schedule.
“ Downey Purchase Agreement
”: Solely with respect to the Downey Mortgage Loans
that are not SRO Mortgage Loans, the Master Mortgage Loan Purchase
and Servicing Agreement, dated as of March 1, 2004, as amended by
that certain Amendment Number One, dated as of July 1, 2004, and as
amended by that certain Amendment Number Two, dated as of July 27,
2004, and as amended by that certain Amendment Number Three, dated
as of September 23, 2005, between GCFP, as purchaser, and Downey,
as seller, as the same may be amended from time to time, and any
assignments and conveyances related to the Downey Mortgage Loans
that are not SRO Mortgage Loans.
Solely with respect to the SRO Mortgage
Loans, the Master Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of September 1, 2004, as amended by that
certain Amendment Number One dated as of October 28, 2004 and as
amended by that certain Amendment Number Two, dated as of September
23, 2005, between GCFP, as purchaser, and Downey, as seller, as the
same may be amended from time to time, and any assignments and
conveyances related to the SRO Mortgage Loans.
“ 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.
“ Eligible Account ”:
Any of
(i)
an account or accounts maintained with a
federal or state chartered depository institution or trust company
the short-term unsecured debt obligations of which (or, in the case
of a depository institution or trust company that is the principal
subsidiary of a holding company, the short-term unsecured debt
obligations of such holding company) are rated in the highest short
term rating category of the Rating 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 the 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 the
Rating Agency without reduction or withdrawal of its then current
ratings of the Certificates as evidenced by a letter from the
Rating Agency to the Trustee. Eligible Accounts may bear
interest.
“ 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, Class A-R-II and Class P 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 (x) the Master
Servicing Fee, (y) the Servicing Fee with respect to the related
Servicer and (z) 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 related
Servicer, and reported to the Master Servicer, that all Insurance
Proceeds, Liquidation Proceeds and other payments or recoveries
which such Servicer expects to be finally recoverable in respect
thereof have been so recovered.
“ Fitch ”: Fitch
Ratings, Inc. and its successors.
“ Freddie Mac ”:
The Federal Home Loan Mortgage Corporation or any successor
thereto.
“ GCFP ”:
Greenwich Capital Financial Products, Inc., and its
successors and assigns.
“ Gross Margin ”:
With respect to each Mortgage Loan, the fixed percentage set
forth in the related Mortgage Note that is added to the applicable
Index on each Adjustment Date in accordance with the terms of the
related Mortgage Note used to determine the Loan Rate for such
Mortgage Loan.
“ Group 1 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 2 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 3 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 4 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Group 5 Mortgage Loan
”: A Mortgage Loan that is identified as such on the
Mortgage Loan Schedule.
“ Indemnified Persons
”: The Trustee, the Master Servicer, the Depositor, the
Custodian and the Securities Administrator 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 X, Class P, Class A-R-II
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.
“ Insurance Proceeds
”: With respect to any Mortgage Loan, proceeds of any
title policy, hazard policy or other insurance policy covering a
Mortgage Loan, to the extent such proceeds are not to be applied to
the restoration of the related Mortgaged Property or released to
the related Mortgagor in accordance with the related Servicing
Agreement.
“ Interest Distributable
Amount ”: With respect to any Distribution Date and
each Class of Certificates (other than the Class P and Class A-R-II
Certificates), the sum of (i) the Monthly Interest
Distributable Amount for that Class and (ii) the Unpaid
Interest Shortfall Amount for that Class.
“ Interest 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.
“ 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 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 and Class 1-A-1B
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 related 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 related
Servicing Agreement.
“ Liquidation Expenses
”: With respect to a Mortgage Loan in liquidation,
unreimbursed expenses paid or incurred by or for the account of the
Master Servicer or the related Servicers, such expenses including
(a) property protection expenses, (b) property sales expenses, (c)
foreclosure and sale costs, including court costs and reasonable
attorneys’ fees, and (d) similar expenses reasonably paid or
incurred in connection with liquidation.
“ Liquidation Proceeds
”: With respect to any Mortgage Loan, the amount (other
than amounts received in respect of the rental of any REO Property
prior to REO Disposition) received by the related Servicer (i) as
proceeds from the liquidation of such Mortgage Loan and (ii) as
proceeds from the liquidation of any related Additional Collateral,
as determined in accordance with the applicable provisions of the
related Servicing Agreement, in each case, other than Recoveries;
provided that with respect to any Mortgage Loan or REO
Property repurchased, substituted or sold pursuant to or as
contemplated hereunder, or pursuant to the applicable provisions of
the related Servicing Agreement, “Liquidation Proceeds”
shall also include amounts realized in connection with such
repurchase, substitution or sale.
“ Loan Group ”:
Any of Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4
or Loan Group 5, 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 Group 3 ”:
At any time, the Group 3 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 4 ”:
At any time, the Group 4 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Group 5 ”:
At any time, the Group 5 Mortgage Loans in the aggregate and
any REO Properties acquired in respect thereof.
“ Loan Rate ”:
With respect to each Mortgage Loan, the annual rate at which
interest accrues on such Mortgage Loan from time to time in
accordance with the provisions of the related Mortgage
Note.
“ Loan-to-Value Ratio
”: With respect to each Mortgage Loan that is not an
Additional Collateral 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 and with respect to any Mortgage Loan
that is an Additional Collateral Mortgage Loan and as to any date
of determination, the fraction (expressed as a percentage) the
numerator of which is the Principal Balance of the related Mortgage
Loan at such date of determination less the Base Value of any
Additional Collateral 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, 0.240% per annum, and on each Distribution Date after
the Call Option Date, 0.480% per annum and (ii) with respect to the
Class 1-A-1B Certificates, 0.320% per annum, and on each
Distribution Date after the Call Option Date, 0.640% 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 ”: 0.00975%
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.
“ Mellon Trust ”:
Mellon Trust of New England, National Association (f/k/a
Boston Safe Deposit and Trust Company), and its successors and
assigns, in its capacity as Originator of the Mellon Trust Mortgage
Loans.
“ Mellon Trust Mortgage
Loans ”: The Mortgage Loans for which Mellon Trust
is listed as “Originator” on the Mortgage Loan
Schedule.
“ Mellon Trust Purchase
Agreement ”: Solely with respect to the Mellon
Trust Mortgage Loans, the Loan Purchase and Assignment Agreement,
dated as of February 1, 2003, between GCFP, as purchaser, and
Mellon Trust, as seller, as the same may be amended from time to
time, and any assignments and conveyances related to the Mellon
Trust Mortgage Loans.
“ 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.
“ 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 and Class A-R-II Certificates)
and any Distribution Date, the amount of interest accrued during
the related Accrual Period at the related Pass-Through Rate on the
Class Certificate Principal Balance or Class Certificate Notional
Balance, as applicable, of that Class 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.
“ 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 (i) any Deficient Valuation
and/or Debt Service Reduction with respect to such Mortgage Loan
and (ii) 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 related
Servicer pursuant to the applicable provisions of the related
Servicing Agreement; and (c) on the assumption that all other
amounts, if any, due under such Mortgage Loan are paid when
due.
“ 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 October 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 value of any Additional Collateral at
origination;
(xi)
[Reserved];
(xii)
the Loan Rate in effect immediately
following the Cut-Off Date;
(xiii)
the date on which the first Monthly
Payment is or was due on the Mortgage Loan;
(xiv)
the stated maturity date;
(xv)
the Servicing Fee Rate, if
any;
(xvi)
whether such loan is an Additional
Collateral Mortgage Loan;
(xvii)
the last Due Date on which a Monthly
Payment was actually applied to the unpaid Stated Principal
Balance;
(xviii)
the original principal balance of the
Mortgage Loan;
(xix)
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);
(xx)
the Index and Gross Margin specified in
related Mortgage Note;
(xxi)
the next Adjustment Date, if
applicable;
(xxii)
the Maximum Loan Rate, if
applicable;
(xxiii)
the Value of the Mortgaged
Property;
(xxiv)
the sale price of the Mortgaged Property,
if applicable;
(xxv)
the product code;
(xxvi)
whether the Mortgage Loan is a
Lender-Paid Mortgage Insurance Loan;
(xxvii)
the Servicer that is servicing each
Mortgage Loan and the Originator of each Mortgage Loan;
(xxviii)
the respective Loan Group;
(xxix)
the Custodian’s name;
(xxx)
whether the Mortgage Loan is a Class P
Mortgage Loan; and
(xxxi)
whether the Mortgage Loan is a SRO
Mortgage Loan.
Information set forth in clauses (ii) and
(iii) above regarding each Mortgagor and the related Mortgaged
Property shall be confidential and the Trustee (or Master Servicer)
shall not disclose such information; 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 or Master
Servicer.
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.
“ National City ”:
National City Mortgage Co., and its successors and assigns,
in its capacity as Originator of the National City Mortgage
Loans.
“ National City Mortgage
Loans ”: The Mortgage Loans for which National City
is listed as “Originator” on the Mortgage Loan
Schedule.
“ National City Purchase
Agreement ”: Solely with respect to the National
City Mortgage Loans, the Amended and Restated Master Mortgage Loan
Purchase and Servicing Agreement dated as of June 1, 2005, as
amended, between GMAC, as purchaser, and National City, as seller,
as the same may be amended from time to time, and any assignments
and conveyances related to the National City Mortgage
Loans.
“ 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 Servicers under the
related Servicing Agreements with respect to such Distribution Date
and (ii) Compensating Interest Payments made with respect to such
Distribution Date.
“ Net Liquidation Proceeds
”: With respect to any Liquidated Mortgage Loan or any
other disposition of related Mortgaged Property (including REO
Property) the related Liquidation Proceeds net of Advances, related
Servicing Advances, the Master Servicing Fee, related Servicing
Fees and any other accrued and unpaid servicing fees received and
retained in connection with the liquidation of such Mortgage Loan
or Mortgaged Property.
“ Net Loan Rate ”:
With respect to any Mortgage Loan (or the related REO
Property), as of any date of determination, a per annum rate of
interest equal to the then applicable Loan Rate for such Mortgage
Loan minus the related Servicing Fee Rate and the Master Servicing
Fee 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 any Loan Group, the
weighted average of the Net Loan Rates of the Mortgage Loans in
such Loan Group as of the first day of the month preceding the
month in which such Distribution Date occurs (or, in the case of
the first Distribution Date, as of the Cut-Off Date), weighted on
the basis of their Stated Principal Balances at the beginning of
the related Due Period.
“ Nonrecoverable ”:
A determination by the Master Servicer or the related
Servicer in respect of a delinquent Mortgage Loan that if it were
to make an Advance or an advance of a delinquent Monthly Payment,
respectively, in respect thereof, such amount would not be
recoverable from any collections or other recoveries (including
Liquidation Proceeds) on such Mortgage Loan.
“ Officers’
Certificate ”: A certificate signed by the Chairman
of the Board, the Vice Chairman of the Board, the President or a
vice president (however denominated), or by the Treasurer, the
Secretary, or one of the assistant treasurers or assistant
secretaries of the Seller, the Master Servicer or the Depositor, as
applicable.
“ One-Month LIBOR ”:
The average of interbank offered rates for one month U.S.
dollar deposits in the London market based on quotations of major
banks.
“ One-Month LIBOR Indexed
”: Indicates a Mortgage Loan that has an adjustable Loan Rate
calculated on the basis of the One-Month LIBOR index.
“ One-Year CMT
”: The weekly average yield 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-Year CMT Indexed
”: Indicates a Mortgage Loan that has an adjustable
Loan Rate calculated on the basis of the One-Year CMT
index.
“ One-Year LIBOR ”:
The average of interbank offered rates for one-year U.S.
dollar deposits in the London market based on quotations of major
banks.
“ One-Year LIBOR Indexed
”: Indicates a Mortgage Loan that has an adjustable Loan Rate
calculated on the basis of the One-Year LIBOR 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
|
6.50%
|
|
Class B-2
|
4.20%
|
|
Class B-3
|
2.70%
|
|
Class B-4
|
1.80%
|
|
Class B-5
|
1.15%
|
|
Class B-6
|
0.40%
|
“ 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 A-R-II and Class P
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 Countrywide, Downey, Mellon Trust and National City,
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 P and Class A-R-II Certificates) and any Distribution
Date, the rate set forth below:
(i)
The respective Pass-Through Rates for the
Class 1-A-1A and Class 1-A-1B Certificates shall be equal to the
least of (a) Certificate LIBOR plus the applicable Margin, (b) the
Net WAC for Loan Group 1 for such Distribution Date multiplied by a
fraction, the numerator of which is the 30 and the denominator of
which is the actual number of days in the related Accrual Period
and (c) 11.00%;
(ii)
The respective Pass-Through Rates for the
Class 2-A-1A, Class 2-A-1B and Class A-R Certificates shall be
equal to the Net WAC for Loan Group 2 for such Distribution
Date;
(iii)
The respective Pass-Through Rates for the
Class 3-A-1A and Class 3-A-1B Certificates shall be equal to the
Net WAC for Loan Group 3 for such Distribution Date;
(iv)
The respective Pass-Through Rates for the
Class 4-A-1A and Class 4-A-1B Certificates shall be equal to the
Net WAC for Loan Group 4 for such Distribution Date;
(v)
The respective Pass-Through Rates for the
Class 5-A-1A and Class 5-A-1B Certificates shall be equal to the
Net WAC for Loan Group 5 for such Distribution Date;
(vi)
The Pass-Through Rate for the Class X
Certificates shall be equal to the excess, if any, of (a) the Net
WAC for Loan Group 1 for such Distribution Date over (b) the
interest accrued on the Class 1-A-1A and Class 1-A-1B Certificates
for that Distribution Date multiplied by 12 and divided by the
aggregate Class Certificate Principal Balance of the Class 1-A-1A
and Class 1-A-1B Certificates immediately prior to such
Distribution Date; and
(vii)
The respective Pass-Through Rates 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 weighted average of the Net WAC
for each Loan Group for such Distribution Date (weighted on the
basis of the related Subordinate Component for each Loan
Group).
“ 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
Master Servicer, the Trustee or any of their respective Affiliates
or for which an Affiliate of the Trustee serves as an
advisor:
(i)
direct obligations of, or obligations
fully guaranteed as to timely payment of principal and interest by,
the United States or any agency or instrumentality thereof,
provided such obligations are backed by the full faith and credit
of the United States;
(ii)
(A) demand and time deposits in,
certificates of deposit of, bankers’ acceptances issued by or
federal funds sold by any depository institution or trust company
(including the Trustee, 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 the 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 the 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 the 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 the 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 the 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
the 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, Class B-4, Class B-5,
Class B-6 and Class P 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 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, unreimbursed Advances and Servicing Advances, any
unpaid Master Servicing Compensation and Servicing Fees and all
amounts, if any, then due and owing to the Trustee, the Master
Servicer and the Securities Administrator under this
Agreement.
“ 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 by the applicable Servicer
during the immediately preceding Prepayment Period, but only to the
extent required to be remitted to the Master Servicer on the
applicable Servicer Remittance Date under the terms of the related
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. 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 of such Undercollateralized
Group immediately prior to such Distribution Date over the sum of
the Principal Balances of the Mortgage Loans in the related Loan
Group immediately prior to such Distribution Date.
“ Principal Distribution
Amount ”: With respect to each Loan Group and any
Distribution Date, the sum of (a) each scheduled payment of
principal collected or advanced on the related Mortgage Loans
(before taking into account any Deficient Valuations or Debt
Service Reductions) by the related Servicer or the Master 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 Servicers or the
Master 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 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 October 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 September 26, 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 October 25, 2005
relating to the offering of the Senior Certificates and the Class
B-1, Class B-2 and Class B-3 Certificates.
“ Purchase Agreement
”: Each of the Countrywide Purchase Agreement, Downey
Purchase Agreement, Mellon Trust Purchase Agreement and the
National City 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 or
Section 10.01 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, provided,
however , that in no case shall such Substitute Mortgage Loan
have a remaining stated term to maturity later than the Final
Scheduled Distribution Date, (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, Moody’s and Fitch. 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.
“ 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 3-A-1A, Class 3-A-1B, Class 4-A-1A, Class 4-A-1B,
Class 5-A-1A, Class 5-A-1B, Class X, Class B-1, Class B-2, Class
B-3, Class B-4, Class B-5 or Class B-6 Certificate.
“ Relief Act ”:
The Servicemembers Civil Relief Act, as amended, or any
similar state or local law.
“ Relief Act Reductions
”: With respect to any Distribution Date and any
Mortgage Loan as to which there has been a reduction in the amount
of interest collectible thereon for the most recently ended Due
Period as a result of the application of the Relief Act, the
amount, if any, by which (i) interest collectible on that Mortgage
Loan during such Due Period is less than (ii) one month’s
interest on the Stated Principal Balance of such Mortgage Loan at
the Loan Rate for such Mortgage Loan before giving effect to the
application of the Relief Act.
“ REMIC ”: A
“real estate mortgage investment conduit” within the
meaning of Section 860D of the Code.
“ REMIC Opinion ”:
An Independent Opinion of Counsel, to the effect that the
proposed action described therein would not, under the REMIC
Provisions, (i) cause any REMIC created hereunder to fail to
qualify as a REMIC while any regular interest in such REMIC is
outstanding, (ii) result in a tax on prohibited transactions with
respect to any REMIC created hereunder or (iii) constitute a
taxable contribution to any REMIC created hereunder after the
Startup Day.
“ REMIC Provisions ”:
Provisions of the federal income tax law relating to real
estate mortgage investment conduits which appear at Section 860A
through 860G of Subchapter M of Chapter 1 of the Code, and related
provisions, and regulations and rulings promulgated thereunder, as
the foregoing may be in effect from time to time.
“ Remittance Report ”:
The Master Servicer’s Remittance Report to the
Securities Administrator providing information with respect to each
Mortgage Loan which is provided no later than the 15th 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 a Servicer in respect
of an REO Property pursuant to the related 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 related Servicing Agreement in respect of the proper operation,
management and maintenance of such REO Property or (ii) payable or
reimbursable to the applicable Servicer pursuant to the applicable
provisions of the related 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 applicable Servicer on
behalf of the Trust Fund through foreclosure or deed-in-lieu of
foreclosure in accordance with the applicable provisions of the
related Servicing Agreement.
“ Required Reserve Fund
Deposit ”: For any Distribution Date and the Class
X Certificates, an amount equal to the lesser of (i) the Monthly
Interest Distributable Amount for the Class X Certificates for such
Distribution Date and (ii) the amount required to bring the balance
on deposit in the Basis Risk Reserve Fund up to an amount equal to
the greater of (a) the Basis Risk Shortfalls for such Distribution
Date with respect to the Class 1-A-1A and Class 1-A-1B Certificates
remaining after application of amounts received under the Yield
Maintenance Agreement and (b) $1,000.
“Request for
Release” : A
release signed by a Servicing Officer, in the form of Exhibit F
attached hereto.
“ Residential Dwelling
”: Any one of the following: (i) a detached
one-family dwelling, (ii) a detached two- to four-family
dwelling, (iii) a one-family dwelling unit in a condominium
project, (iv) a manufactured home, (v) a cooperative unit or (vi) a
detached one-family dwelling in a planned unit development, none of
which is a mobile home.
“ Residual Certificate
”: Each of the Class A-R and Class A-R-II
Certificates.
“ Responsible Officer
”: When used with respect to the Trustee, 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(e).
“ 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
Servicers 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.
“ 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 3-A-1A, Class 3-A-1B, Class 4-A-1A,
Class 4-A-1B, Class 5-A-1A, Class 5-A-1B, Class X or Class A-R
Certificates.
“ Senior Certificate Group
”: Any of (a) the Class 1-A-1A, Class 1-A-1B and Class
X Certificates with respect to Loan Group 1, (b) the Class 2-A-1A,
Class 2-A-1B and Class A-R Certificates with respect to Loan Group
2, (c) the Class 3-A-1A and Class 3-A-1B Certificates with respect
to Loan Group 3, (d) the Class 4-A-1A and Class 4-A-1B Certificates
with respect to Loan Group 4 and (e) the Class 5-A-1A and Class
5-A-1B Certificates with respect to Loan Group 5.
“ 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 of the
Classes of Senior Certificates 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 a Senior Certificate 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 four Senior
Certificate Groups, the Senior Percentage of the Loan Group related
to the remaining Senior Certificates 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 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 November
2012, 100%. Except as provided herein, the Senior Prepayment
Percentage for each Loan Group for any Distribution Date occurring
on or after the seventh anniversary of the first Distribution Date
will be as follows: (i) from November 2012 through
October 2013, the related Senior Percentage plus 70% of the related
Subordinate Percentage for that Distribution Date; (ii) from
November 2013 through October 2014, the related Senior Percentage
plus 60% of the related Subordinate Percentage for that
Distribution Date; (iii) from November 2014 through October
2015, the related Senior Percentage plus 40% of the related
Subordinate Percentage for that Distribution Date; (iv) from
November 2015 through October 2016, the related Senior Percentage
plus 20% of the related Subordinate Percentage for that
Distribution Date; and (v) from and after November 2016, 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 November 2012, 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 November 2008 the Two Times Test is
satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution Date
plus 50% of an amount equal to 100% minus the related Senior
Percentage for such Distribution Date and (ii) if on any
Distribution Date in or after November 2008 the Two Times Test is
satisfied, the Senior Prepayment Percentage for each Loan Group
will equal the related Senior Percentage for such Distribution
Date.
“ Senior Principal Distribution
Amount ”: With respect to each Loan Group and any
Distribution Date, the sum of:
(1)
the related Senior Percentage of all
amounts described in clauses (a) through (d) of the definition of
“Principal Distribution Amount” 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;”
provided, however
, that on any Distribution Date after a
Senior Termination Date has occurred with respect to four Senior
Certificate Groups, the Senior Principal Distribution Amount for
the remaining Senior Certificate Group will be calculated pursuant
to the above formula based on all the Mortgage Loans rather than
the Mortgage Loans in the related Loan Group only.
“ Senior Termination Date
”: For each Senior Certificate Group, the Distribution
Date on which the aggregate of the Class Certificate Principal
Balances of the related Senior Certificates is reduced to
zero.
“ Servicer ”:
Each of the primary servicers of the Mortgage Loans as set
forth and as individually defined in the Mortgage Loan Schedule
hereto and any successors thereto.
“ Servicer Remittance Date
”: The “Remittance Date” defined in the
applicable Servicing Agreement.
“ Servicing Account ”:
Any account established and maintained by a Servicer with
respect to the related Mortgage Loans and any REO Property,
pursuant to the terms of the respective Servicing
Agreement.
“ Servicing Advances
”: With respect to any Servicer or the Master Servicer,
all customary, reasonable and necessary “out of pocket”
costs and expenses (including reasonable attorneys’ fees and
expenses) incurred by such Servicer or the Master 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
related Servicing Agreements.
“ Servicing
Agreement”: The servicing agreements relating to
the Mortgage Loans as set forth in Exhibit M hereto 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 each Servicer and each Mortgage Loan serviced
by such Servicer and for any calendar month, the fee payable to
such Servicer determined pursuant to the related 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 a Master Servicer or
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 SRO Mortgage Loan, any and all of the
following: (a) the right, under the related Servicing Agreement, to
terminate the related SRO Servicer as servicer of such Mortgage
Loan, with or without cause, subject to Section 3.03 of this
Agreement; (b) the right, under the related 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 related SRO Servicer as its servicing
compensation as agreed to by the Servicing Rights Owner and the
related SRO 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 SRO Mortgage Loans, GCFP or any
successor or assign of GCFP.
“ Six-Month LIBOR ”:
The average of interbank offered rates for six-month U.S.
dollar deposits in the London market based on quotations of major
banks.
“ Six-Month LIBOR
Indexed ”: Indicates a Mortgage Loan that has an
adjustable Loan Rate calculated on the basis of the Six-Month LIBOR
index.
“ SRO Mortgage Loans
”: The Mortgage Loans for
which Downey is the SRO Servicer and GCFP is the Servicing Rights
Owner, and which are identified in the Mortgage Loan
Schedule.
“ SRO Servicer ”:
Downey in its capacity as Servicer of the SRO 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 November 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, (iii) all
Liquidation Proceeds and Insurance Proceeds applied by the
applicable Servicer as recoveries of principal in accordance with
the applicable provisions of the related Servicing Agreement, to
the extent distributed pursuant to Section 5.01 before such date of
determination, and (iv) any Realized Loss incurred with
respect thereto as a result of a Deficient Valuation made during or
prior to the Due Period for the most recent Distribution Date
preceding such date of determination; and (c) as of any date
of determination subsequent to the Distribution Date on which the
proceeds, if any, of a Liquidation Event with respect to such
Mortgage Loan would be distributed, zero. With respect to any
REO Property: (x) as of any date of determination up to and
including the Distribution Date on which the proceeds, if any, of a
Liquidation Event with respect to such REO Property would be
distributed, an amount (not less than zero) equal to the Stated
Principal Balance of the related Mortgage Loan as of the date on
which such REO Property was acquired on behalf of the Trust, 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, (i) the outstanding
Principal Balance of all Mortgage Loans 60 days or more Delinquent
(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 Classes of
Subordinate Certificates on such Distribution Date, does not equal
or exceed 50% and (ii) cumulative Realized Losses with respect
to all of the Mortgage Loans do not exceed:
·
for the Distribution Date on the seventh
anniversary of the first Distribution Date, 30% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as of
the Closing Date,
·
for the Distribution Date on the eighth
anniversary of the first Distribution Date, 35% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as of
the Closing Date,
·
for the Distribution Date on the ninth
anniversary of the first Distribution Date, 40% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as of
the Closing Date,
·
for the Distribution Date on the tenth
anniversary of the first Distribution Date, 45% of the aggregate
Certificate Principal Balance of the Subordinate Certificates as of
the Closing Date, and
·
for the Distribution Date on or after the
eleventh anniversary of the first Distribution Date, 50% of the
aggregate Certificate Principal Balance of the Subordinate
Certificates as of the Closing Date.
“ Strike Rate ”:
With respect to any Distribution Date and the Yield
Maintenance Agreement, the strike rate listed on Schedule II
hereto.
“ 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) Net WAC 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,” “2,” “3,” “4”
and “5” appearing after the corresponding Loan Group
designation is used to indicate a Subordinate Component allocable
to Loan Group 1, Loan Group 2, Loan Group 3, Loan Group 4 and Loan
Group 5, respectively.
“ 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 four Senior
Certificate 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 four
Senior Certificate 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 2005-14, 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, including 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 Depositor’s rights to and security interest in the
Additional Collateral; (vi) all right, title and interest of the
Depositor in and to each security or pledge agreement in respect of
Additional Collateral; (vii) 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; (viii) all right, title and interest
of the Seller in and to each of the Servicing Agreements, (ix) the
Basis Risk Reserve Fund and the Yield Maintenance Account, (x) the
rights of the Trust under the Yield Maintenance Agreement and (xi)
all proceeds of the foregoing. Notwithstanding the foregoing,
however, the Trust Fund specifically excludes (1) all payments and
other collections of interest and principal due on the Mortgage
Loans on or before the Cut-Off Date and principal received before
the Cut-Off Date (except any principal collected as part of a
payment due after the Cut-Off Date), (2) all income and gain
realized from Permitted Investments of funds on deposit in the
Distribution Account and (3) all Servicing Rights with respect to
the SRO Mortgage Loans.
“ Trustee ”:
Deutsche Bank National Trust Company, a national banking
association, 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 November 2008, cumulative
Realized Losses do not exceed 30% of the Original Subordinated
Principal Balance or prior to the Distribution Date in November
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 of the related classes of Senior Certificates, 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 Basis Risk
Shortfall ”: With respect to any Distribution Date
and the LIBOR Certificates, the aggregate of all Basis Risk
Shortfalls with respect to such Class of Certificates remaining
unpaid from previous Distribution Dates, plus interest accrued
thereon at the applicable Pass-Through Rate determined without
regard to clause (c) of the definition therefor to the extent not
paid on prior Distribution Dates.
“ Unpaid Interest Shortfall
Amount ”: With respect to each Class of
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 Certificates.
“ 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 Holders of the Class 1-A-1A and Class 1-A-1B
Certificates, 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 ”: The transaction evidenced by the
confirmation dated October 31, 2005 together with any other related
documents thereto, between the Yield Maintenance Provider and the
Securities Administrator for the benefit of the Class 1-A-1A and
Class 1-A-1B Certificates.
“ Yield Maintenance
Distributable Amount ”: With respect to each
Distribution Date and the Subordinate Certificates, an amount equal
to the product of (i) the excess, if any, of (x) One-Month LIBOR,
subject to a maximum of 11.00%, over (y) the applicable Strike
Rate, (ii) the lesser of (a) the related Yield Maintenance Notional
Balance and (b) the aggregate Class Certificate Principal Balance
of the Class 1-A-1A and Class 1-A-1B Certificates on the first day
of the related Accrual Period and (iii) a fraction, the numerator
of which is 30 and the denominator of which is the actual number
days in the related interest Accrual Period.
“Yield Maintenance
Notional Balance” :
For the Yield Maintenance Agreement and any Distribution
Date, the amount set forth on Schedule II hereto.
“ Yield Maintenance
Payment ”: The payment remitted to the Securities
Administrator by the Yield Maintenance Provider under the Yield
Maintenance Agreement.
“ Yield Maintenance
Provider ”: Bear Sterns Financial Products
Inc.
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) the
Depositor’s security interest in the Additional Collateral;
(vi) all proceeds of any of the foregoing; and (vii) all other
assets included or to be included in the Trust Fund; provided that
such assignment shall not include any Servicing Rights with respect
to the SRO Mortgage Loans. Such assignment includes all
interest and principal due to the Depositor or the Master Servicer
after the Cut-Off Date with respect to the Mortgage Loans. In
addition, on or prior to the Closing Date, the Depositor shall
cause the Yield Maintenance Provider to enter into the Yield
Maintenance Agreement with the Securities Administrator. The
Depositor hereby directs the Securities Administrator to execute,
not in its individual capacity, but solely as Securities
Administrator on behalf of the Trust, and deliver the Yield
Maintenance Agreement.
It is agreed and understood by the
Depositor, the Seller and the Trustee that it is not intended that
any Mortgage Loan be included in the Trust Fund that is a
“High-Cost Home Loan” as defined in the New Jersey Home
Ownership Act, effective as of November 27, 2003, or The Home Loan
Protection Act of New Mexico, effective as of January 1, 2004, or
that is a “High Cost Home Mortgage Loan” as defined in
the Massachusetts Predatory Home Loan Practices Act, effective as
of November 7, 2004, or that is an “Indiana High Cost Home
Mortgage Loan” as defined in the Indiana High Cost Home Loan
Act, effective as of January 1, 2005.
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
SRO 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 Agreements and the Assignment Agreements (as defined in
the Mortgage Loan Purchase Agreement), each 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 and
Assignment 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 addition, with respect to any
Additional Collateral Mortgage Loan, the Depositor does hereby
transfer, assign, set-over and otherwise convey to the Trustee
without recourse (except as provided herein) (i) its rights as
assignee under any security agreements or pledge agreements
relating to the Additional Collateral supporting any Additional
Collateral Mortgage Loan, (ii) its security interest in and to any
Additional Collateral and (iii) its right to receive payments in
respect of any Additional Collateral Mortgage Loan pursuant to the
related Servicing Agreement.
In connection with such transfer and
assignment, the Seller, on behalf of the Depositor, does hereby
deliver on the Closing Date, unless otherwise specified in this
Section 2.01, to, and deposit with the Trustee, or the Custodian as
its designated agent, the following documents or instruments with
respect to each Mortgage Loan (a “ Mortgage File
”) so transferred and assigned:
(i)
the original Mortgage Note, endorsed
either on its face or by allonge attached thereto in blank or in
the following form: “Pay to the order of Deutsche Bank
National Trust Company, as Trustee for HarborView Mortgage Loan
Trust 2005-14, Mortgage Loan Pass-Through Certificates, Series
2005-14, 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)
the original of any security agreement or
pledge agreement relating to any Additional Collateral, if
applicable, and executed in connection with the Mortgage Note,
assigned in blank or to the Trustee on behalf of the
Trust;
(iii)
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;
(iv)
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;
(v)
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 2005-14, Mortgage
Loan Pass-Through Certificates, Series 2005-14, without
recourse;”
(vi)
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;
(vii)
the original Primary Insurance Policy, if
any, or certificate, if any;
(viii)
the original or a certified copy of
lender’s title insurance policy; and
(ix)
with respect to any Cooperative Loan, the
Cooperative Loan Documents.
In connection with the assignment of any
MERS Mortgage Loan, the Seller agrees that it will take (or shall
cause the applicable Servicer to take), at the expense of the
Seller (with the cooperation of the Depositor, the Trustee and the
Master Servicer), such actions as are necessary to cause the
MERS® System to indicate that such Mortgage Loans have been
assigned by the Seller to the Trustee in accordance with this
Agreement for the benefit of the Certificateholders by including
(or deleting, in the case of Mortgage Loans that are repurchased in
accordance with this Agreement) in such computer files the
information required by the MERS® System to identify the
series of the Certificates issued in connection with the transfer
of such Mortgage Loans to the HarborView Mortgage Loan Trust
2005-14.
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 applicable Servicer to take), at the expense of
the Seller (with the cooperation of the Depositor, the Trustee and
the Master Servicer), such actions as are necessary under
applicable law (including but not limited to the relevant UCC) in
order to perfect the interest of the Trustee in the related
Mortgaged Property.
Assignments of each Mortgage with respect
to each Mortgage Loan that is not a MERS Mortgage Loan (other than
a Cooperative Loan) shall be recorded; provided, however ,
that such assignments need not be recorded if, in the Opinion of
Counsel (which must be from Independent Counsel and not at the
expense of the Trust or the Trustee) acceptable to the Trustee, the
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 applicable Servicer to submit each such assignment for
recording), at the cost and expense of the Seller, in the manner
described above, at no expense to the Trust or Trustee, upon the
earliest to occur of (1) reasonable direction by the Majority
Certificateholders, (2) the occurrence of a bankruptcy or
insolvency relating to the Seller or the Depositor, or (3) with
respect to any one Assignment of Mortgage, the occurrence of a
bankruptcy, insolvency or foreclosure relating to the Mortgagor
under the related Mortgage. Subject to the preceding
sentence, as soon as practicable after the Closing Date (but in no
event more than three months thereafter except to the extent delays
are caused by the applicable recording office), the Seller shall
properly record (or the Seller will cause the applicable Servicer
to properly record), at the expense of the Seller (with the
cooperation of the Depositor, the Trustee and the Master Servicer),
in each public recording office where the related Mortgages are
recorded, each assignment referred to in Section 2.01(v) above with
respect to a Mortgage Loan that is not a MERS Mortgage
Loan.
The Trustee agrees to execute and deliver
to the Depositor on or prior to the Closing Date an acknowledgment
of receipt of the original Mortgage Note (with any exceptions
noted), substantially in the form attached as Exhibit G-1
hereto.
If the original lender’s title
insurance policy, or a certified copy thereof, was not delivered
pursuant to Section 2.01(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 the Seller 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 Servicers, 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 applicable
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 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 the 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 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, 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
continuin
