Custodial Duties. (a) In the absence of contrary Instructions, the Custodian is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral: (i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement); (ii) collect and receive, for the account of the Issuer (subject to the security created by the Deed of Charge), all distributions received in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account; (iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments; (iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above; (v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account; (vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and (vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalf. (b) The Custodian is authorised by the Issuer to, and where applicable the Custodian shall, carry out the following actions in relation to the Securities Collateral only upon receipt of and in accordance with specific Instructions: (i) make payment for and receive Securities Collateral, or deliver or dispose of Securities Collateral; (ii) save pursuant to a proxy as described in paragraph (v) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trustee; (iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised to, and shall sell the rights entitlement or fractional interest and transfer the proceeds to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to time; (iv) Corporate Actions notices dispatched to the Issuer may have been obtained from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying on such notice; (v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security Trustee; and (vi) subject to the agreement of the Custodian (in its sole and absolute discretion), carry out any action other than in relation to the custodial duties set out in paragraph 4(a) above. (i) Subject to the provisions of this paragraph 4(c), the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, in respect of Securities Collateral which are securities upon receipt of the necessary documentation from the Issuer, or any person acting on behalf of it. (ii) The provision of a tax reclaim service by the Custodian in accordance with this paragraph 4(c) is conditional upon the Custodian receiving from the Issuer (A) a declaration as to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available from the Custodian). The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received in respect of the Securities Collateral and that United States withholding tax will be deducted from United States source income. The Issuer shall provide to the Custodian in a timely manner such documentation and information as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correcting. (iii) The Custodian shall not be liable to the Issuer, the Security Trustee or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian. (iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply. (v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account. (vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction. (vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held for the Issuer. (viii) The Issuer shall pay to the Custodian an additional fee for the provision of the services provided under this paragraph 4(c), in an amount to be agreed between the Issuer and the Custodian. (d) The Custodian shall have no responsibility or liability for the creation of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating thereto.
Appears in 2 contracts
Samples: Swap Collateral Account Bank Agreement, Swap Collateral Account Bank Agreement
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Securitization, Inc. 2002-HE1 Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph (v) belowNet Liquidation Proceeds, take discretionary action on behalf net of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans any related Foreclosure Profit and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Net Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf all proceeds of the beneficial owner of the Securities Collateral, is received any Mortgage Loans repurchased by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised to, and shall sell the rights entitlement or fractional interest and transfer the proceeds Seller pursuant to the Swap Collateral Account or take such other action Purchase Agreement, all Substitution Adjustment Amounts required to be deposited in connection with respect the substitution of an Eligible Substitute Loan pursuant to the relevant Corporate Action as is notified to Purchase Agreement, all proceeds of any Mortgage Loan repurchased by the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timeServicer;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeXXX proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 6.06; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the Issuer, Owner Trustee and the Security Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by Indenture Trustee and the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoSecurityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Sec Inc Asst Back Notes Ser 2002 He1)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Securitization, Inc. 2003-HE2 Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph (v) belowNet Liquidation Proceeds, take discretionary action on behalf net of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans any related Foreclosure Profit and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Net Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 6.06; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by Indenture Trustee and the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoSecurityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2003-He2 Trust)
Custodial Duties. (aA) In Subject to Clause 3.2(B), in the absence of contrary Instructionsinstructions, the Custodian is instructed and authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions on behalf of the Issuer in relation to the Securities CollateralCollateral Assets:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii1) collect and receive, for the account of the Issuer (subject to the security created by the Deed of ChargeTrust Deed), all distributions received Distributions in respect of the Securities Collateral (Distributions) Assets and any security or property offered or delivered in exchange for the Securities any Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral AccountAssets;
(iii2) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral Assets which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv3) save to the extent provided below in paragraph 4(b)(iiClause 3.3(B), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii(2) above;; and
(v4) exchange interim or temporary receipts for definitive certificatesforward to the Issuer and the Trustee (on the Issuer’s behalf) all notices received in respect of the Collateral Assets promptly following receipt thereof.
(B) Prior to the first Issue Date, the Portfolio Administrator shall prepare and old or over stamped certificates for new certificates and hold such definitive and/or new certificates execute on behalf of the Issuer a United States tax Form W-8BEN-E claiming a reduction in the Custody Account;
(vi) deliver rate of United States dividend withholding tax from 30% to 15% under the Ireland-United States double tax treaty. The Portfolio Administrator shall provide such completed Form W-8BEN-E to the Cash Manager and the Servicer (Custodian with a copy to the Security Trustee) transaction advices and/or regular statements Issuer. Following receipt of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and Form W-8BEN-E the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable shall apply United States dividend withholding tax in respect of Collateral Assets located in the United States at the rate of 15% (subject to any subsequent change in law or notices relating in such treaty) in relation to redemption dividends received in respect of Securities Collateral promptly following notification thereof on Assets located in the Issuer's behalfUnited States.
(bC) The Custodian In the event that any other person is authorised by appointed to act as custodian for the Issuer toin respect of the Programme or any Series thereunder in addition to or in place of the Custodian, the Portfolio Administrator shall similarly prepare and where applicable the Custodian shall, carry out the following actions in relation to the Securities Collateral only upon receipt of and in accordance with specific Instructions:
(i) make payment for and receive Securities Collateral, or deliver or dispose of Securities Collateral;
(ii) save pursuant to a proxy as described in paragraph (v) below, take discretionary action execute on behalf of the beneficial owner Issuer a United States tax Form W-8BEN-E claiming a reduction in the rate of United States dividend withholding tax from 30% to 15% under the Securities CollateralIreland-United States double tax treaty, including subscription rightsand provide a copy of such Form W- 8BEN-E to such other person.
(D) In the event that the Collateral Assets for any Series consist of or include shares in any company incorporated in any jurisdiction other than the United States, bonus issuesthe Portfolio Administrator, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice Issuer shall cooperate, using reasonable efforts, to take any action or steps or complete any procedural formalities necessary or desirable to enable the Issuer to receive dividends on such Collateral Assets free of such Corporate Actions dividend withholding tax or subject to a reduced rate of dividend withholding tax.
(E) In the extent event that the Custodian's corporate actions department has actual knowledge Custodian becomes aware of a Corporate Action in time any deduction or withholding for or on account of Tax applicable to notify any Collateral Assets held by the Issuer, the Cash Manager, the Servicer and the Security Trustee;
(iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action Custodian on behalf of the beneficial owner Issuer and/or any payments thereon, in each case other than United States dividend withholding tax at the rate of the Securities Collateral, is received by the Custodian which bears an expiration date15%, the Custodian will endeavour to obtain Instructions from shall promptly notify the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised to, and shall sell the rights entitlement or fractional interest and transfer the proceeds to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to time;Portfolio Administrator.
(ivF) Corporate Actions notices dispatched to the Issuer may have been obtained from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for in respect of (i) any loss that may result from relying on such notice;
Tax payable by the Issuer by reference to the Issuer’s income, profits or gains; (vii) make available details any stamp duty, registration or similar Tax payable in respect of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians Issuer’s acquisition, disposal or nominees shall execute any form holding of proxy, Collateral Assets; or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security Trustee; and
(vi) subject to the agreement of the Custodian (in its sole and absolute discretion), carry out any action other than in relation to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c), the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, in respect of Securities Collateral which are securities upon receipt of the necessary documentation from the Issuer, or any person acting on behalf of it.
(ii) The provision of a tax reclaim service Tax incurred by the Custodian in accordance with relation to acting as custodian of the Collateral Assets or the performance of its duties under this paragraph 4(c) is conditional upon Agreement (other than any Tax calculated by reference to the Custodian receiving from the Issuer (A) a declaration as to its identity and place profits or net income of residence and (B) certain other documentation (pro forma copies of which are available from the Custodian). The , and the Issuer acknowledges that, if shall indemnify the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received in respect of the Securities Collateral and that United States withholding tax will be deducted from United States source income. The Issuer shall provide any such Tax referred to the Custodian in a timely manner such documentation and information as it may require in connection with taxation(i), and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating (ii) or correcting.
(iii) The Custodian shall above other than any Tax which would not be liable to the Issuer, the Security Trustee or any third party have arisen but for any taxfraud, fines bad faith, wilful misconduct or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion gross negligence of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party breach by the Custodian of inaccurate or misleading information this Agreement or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the CustodianMargin Account Agreement.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held for the Issuer.
(viii) The Issuer shall pay to the Custodian an additional fee for the provision of the services provided under this paragraph 4(c), in an amount to be agreed between the Issuer and the Custodian.
(d) The Custodian shall have no responsibility or liability for the creation of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating thereto.
Appears in 1 contract
Samples: Portfolio Administration Agreement
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Securitization Issuance, LLC [_____] Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph (v) belowNet Liquidation Proceeds, take discretionary action on behalf net of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans any related Foreclosure Profit and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Net Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 6.06; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by Indenture Trustee and the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoSecurityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Securitization Inc)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Funding Trust, LLC [______] Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph Net Liquidation Proceeds (vnet of any related Foreclosure Profit) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 8.10; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Indenture Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoEnhancer and the Securityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Funding Trust, LLC)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Securitization Issuance, LLC 2004-HE1 Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph Net Liquidation Proceeds (vnet of any related Foreclosure Profit) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 8.10; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Indenture Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoEnhancer and the Securityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Sec Series 2004 - HE1)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Mortgage Loan Trust, LLC [______] Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph Net Liquidation Proceeds (vnet of any related Foreclosure Profit) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 8.10; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Indenture Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoEnhancer and the Securityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Mortgage Loan Trust, LLC)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled "Wachovia Asset Securitization, Inc. 2002-HE2 Trust Custodial Account," in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph (v) belowNet Liquidation Proceeds, take discretionary action on behalf net of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans any related Foreclosure Profit and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Net Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf all proceeds of the beneficial owner of the Securities Collateral, is received any Mortgage Loans repurchased by the Custodian which bears an expiration date, Seller pursuant to the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 6.06; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the Issuer, Owner Trustee and the Security Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by Indenture Trustee and the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoSecurityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2002 He2 Trust)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account of the Issuer (subject to the security created by the Deed of Charge), all distributions received in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalf.
(b) The Custodian is authorised by the Issuer to, and where applicable the Custodian shall, carry out the following actions in relation to the Securities Collateral only upon receipt of and in accordance with specific Instructions:
(i) make payment for and receive Securities Collateral, or deliver or dispose of Securities Collateral;
(ii) save pursuant to a proxy as described in paragraph (v) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trustee;
(iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised to, and shall sell the rights entitlement or fractional interest and transfer the proceeds to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to time;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying on such notice;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security Trustee; and
(vi) subject to the agreement of the Custodian (in its sole and absolute discretion), carry out any action other than in relation to the custodial duties set out in paragraph 4(a) (Custodial Duties) above.
(i) Subject to the provisions of this paragraph 4(c), the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, in respect of Securities Collateral which are securities upon receipt of the necessary documentation from the Issuer, or any person acting on behalf of it.
(ii) The provision of a tax reclaim service by the Custodian in accordance with this paragraph 4(c) is conditional upon the Custodian receiving from the Issuer (A) a declaration as to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available from the Custodian). The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received in respect of the Securities Collateral and that United States withholding tax will be deducted from United States source income. The Issuer shall provide to the Custodian in a timely manner such documentation and information as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correcting.
(iii) The Custodian shall not be liable to the Issuer, the Security Trustee or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held for the Issuer.
(viii) The Issuer shall pay to the Custodian an additional fee for the provision of the services provided under this paragraph 4(c), in an amount to be agreed between the Issuer and the Custodian.
(d) The Custodian shall have no responsibility or liability for the creation of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating thereto.
Appears in 1 contract
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled “Wachovia Asset Securitization, Inc. 2003-HE1 Trust Custodial Account,” in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph (v) belowNet Liquidation Proceeds, take discretionary action on behalf net of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans any related Foreclosure Profit and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Net Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issue, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf all proceeds of the beneficial owner of the Securities Collateral, is received any Mortgage Loans repurchased by the Custodian which bears an expiration date, Seller pursuant to the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 6.06; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the Issuer, Owner Trustee and the Security Indenture Trustee any material failure on the Servicer's part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer's rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by Indenture Trustee and the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoSecurityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Asset Securitization Inc 2002 He2 Trust)
Custodial Duties. (a) In the absence of contrary Instructions, the Custodian The Servicer is authorised by the Issuer to, and where applicable, the Custodian shall, carry out the following actions in relation to the Securities Collateral:
(i) sign any affidavits, certificates of ownership or other certificates relating to the Securities Collateral which may be required by the Commissioners of HM Revenue & Customs or any other tax or regulatory authority in any relevant jurisdiction, whether governmental or otherwise, and whether relating to ownership, or income, capital gains or other tax, duty or levy (and the Issuer further agrees to ratify and to confirm or do, or to procure the doing of, such things hereby appointed as may be necessary or appropriate to complete or evidence the Custodian's actions under this paragraph 4(a)(i) or otherwise under the terms of this Agreement);
(ii) collect and receive, for the account custodian of the Issuer (subject to the security created by the Deed of Charge), all distributions received documents in respect of the Securities Collateral (Distributions) and any security or property offered or delivered in exchange for the Securities Collateral and shall notify the Cash Manager, the Servicer, the Issuer and the Security Trustee promptly of any such receipt and the deposit thereof into the Swap Collateral Account;
(iii) make presentation of interest items and receipts and other principal items or presentation for payment, conversion or exchange of any Securities Collateral which become payable or convertible or exchangeable and the endorsement for collection of cheques, drafts and other negotiable instruments;
(iv) save to the extent provided below in paragraph 4(b)(ii), take any action which is necessary and proper in connection with the receipt of Distributions or security or property as referred to in paragraph 4(a)(ii) above;
(v) exchange interim or temporary receipts for definitive certificates, and old or over stamped certificates for new certificates and hold such definitive and/or new certificates in the Custody Account;
(vi) deliver to the Cash Manager and the Servicer (with a copy to the Security Trustee) transaction advices and/or regular statements of account showing the Securities Collateral held as at the any Calculation Date and at such other intervals as may be agreed between the Cash Manager, the Servicer, the Security Trustee and the Custodian or otherwise upon the Security Trustee's request; and
(vii) forward to the Issuer, the Cash Manager, the Servicer and the Security Trustee details of all amounts payable in respect of or notices relating to redemption of Securities Collateral promptly following notification thereof on the Issuer's behalfeach Mortgage File.
(b) The Custodian is authorised Servicer shall establish the Custodial Account, which shall be an Eligible Account, titled “Wachovia Mortgage Loan Trust, LLC [______] Trust Custodial Account,” in which the Servicer or the Issuer, as applicable, shall deposit or cause to be deposited any amounts representing payments and collections in respect of the Mortgage Loans received by it subsequent to the Issuer to, and where applicable Cut-Off Date or Subsequent Cut-Off Date (other than in respect of the Custodian shall, carry out payments referred to in the following actions in relation paragraph), within one Business Day following receipt thereof (or otherwise on or prior to the Securities Collateral only upon receipt of Closing Date), including the following payments and in accordance with specific Instructions:collections received or made by it (without duplication):
(i) make payment for and receive Securities Collateralall payments of principal of or interest on the Mortgage Loans (other than amounts in respect of the Excluded Amount) received or advanced by the Servicer, or deliver or dispose net of Securities Collateralany portion of the interest thereof retained by any Subservicer as subservicing fees;
(ii) save pursuant to a proxy as described in paragraph Net Liquidation Proceeds (vnet of any related Foreclosure Profit) below, take discretionary action on behalf of the beneficial owner of the Securities Collateral, including subscription rights, bonus issues, stock repurchase plans and rights offerings or legal notices or other material intended to be transmitted to Securities Collateral holders (Corporate Actions); the Custodian will give the Issuer, the Cash Manager, the Servicer and the Security Trustee notice of such Corporate Actions to the extent that the Custodian's corporate actions department has actual knowledge of a Corporate Action in time to notify the Issuer, the Cash Manager, the Servicer and the Security Trusteeall Subsequent Recovery Amounts;
(iii) when a rights entitlement or a fractional interest resulting from a rights issueall proceeds of any Mortgage Loans repurchased by the Seller pursuant to the Purchase Agreement, stock dividend, stock split, or similar Corporate Action requiring discretionary action on behalf including any indemnity payments paid by the Seller pursuant to Section 3.1(d) of the beneficial owner of the Securities Collateral, is received by the Custodian which bears an expiration date, the Custodian will endeavour to obtain Instructions from the Issuer (or the Cash Manager or Servicer on behalf of the Issuer), but if Instructions are not received in time for the Custodian to take timely action, or actual notice of such Corporate Action is received too late to seek Instructions, the Custodian is authorised toPurchase Agreement, and shall sell all Substitution Adjustment Amounts required to be deposited in connection with the rights entitlement or fractional interest and transfer the proceeds substitution of an Eligible Substitute Loan pursuant to the Swap Collateral Account or take such other action with respect to the relevant Corporate Action as is notified to the Issuer, the Cash Manager, the Servicer and the Security Trustee from time to timePurchase Agreement;
(iv) Corporate Actions notices dispatched to the Issuer may have been obtained Insurance Proceeds, other than Net Liquidation Proceeds, resulting from sources which the Custodian does not control and may have been translated or summarised. The Custodian has no duty to verify the information contained in such notices nor the accuracy of any translation or summary and therefore does not guarantee its accuracy, completeness or timeliness, and shall not be liable to the Issuer, the Trustee or any other party to this Agreement for any loss that may result from relying insurance policy maintained on such noticea Mortgaged Property;
(v) make available details of the proxy voting services offered by the Custodian on request. Neither the Custodian nor its Sub-Custodians or nominees shall execute any form of proxy, or give any consent or take any action, in relation to any Securities Collateral (other than as authorised under paragraph (iii) above) except upon the Instructions of the Issuer, or the Cash Manager or the Servicer or (following service of a Note Acceleration Notice) the Security TrusteeREO proceeds and Condemnation Proceeds; and
(vi) subject amounts required to be paid by the agreement of the Custodian (in its sole and absolute discretion)Servicer pursuant to Section 8.10; provided, carry out any action other than in relation however, that with respect to the custodial duties set out in paragraph 4(a) above.
(i) Subject to the provisions of this paragraph 4(c)each Collection Period, the Custodian will apply for a reduction of withholding tax, and/or assist the Issuer in making reclaims of tax, Servicer shall be permitted to retain from payments in respect of Securities Collateral which interest on the Mortgage Loans, the Servicing Fee for such Collection Period. The foregoing requirements respecting deposits to the Custodial Account are securities upon receipt exclusive, it being understood that, without limiting the generality of the necessary documentation from foregoing, the IssuerServicer need not deposit in the Custodial Account amounts representing Foreclosure Profits, fees (including annual fees) or any person acting on behalf of it.
late charge penalties, payable by Mortgagors (ii) The provision of a tax reclaim service by the Custodian such amounts to be retained as additional servicing compensation in accordance with this paragraph 4(c) Section 3.10 hereof), or amounts received by the Servicer for the accounts of Mortgagors for application towards the payment of taxes, insurance premiums, assessments and similar items. In the event any amount not required to be deposited in the Custodial Account is conditional upon so deposited, the Custodian receiving Servicer may at any time withdraw such amount from the Issuer (A) Custodial Account, any provision herein to the contrary notwithstanding, and pay such amount to the Person entitled to such amount. The Servicer shall retain all Foreclosure Profits as additional servicing compensation. Payments and collections allocable to an Excluded Amount shall not be deposited into the Custodial Account, the Distribution Account or the Note Payment Account, but shall be distributed by the Servicer to the Seller pursuant to Section 3.04. If the Servicer makes any P&I Advances pursuant to Section 3.21 the Servicer shall be entitled to reimbursement itself by withdrawing from the Custodial Account, as provided herein, any amounts so advanced. The Servicer may cause the institution maintaining the Custodial Account to invest any funds in the Custodial Account in Permitted Investments, which investments shall mature not later than the Business Day preceding the next succeeding Payment Date, and which investments shall not be sold or disposed of prior to maturity. In addition, no such Permitted Investment shall be purchased at a declaration price in excess of par. Except as provided above, all income and gain realized from any such investment shall inure to the benefit of the Servicer and shall be subject to its identity and place of residence and (B) certain other documentation (pro forma copies of which are available withdrawal or order from the Custodian)time to time. The Issuer acknowledges that, if the Custodian does not receive such documents, declarations and information, additional taxation may be deducted from income received amount of any losses incurred in respect of the Securities Collateral and that United States withholding tax will principal amount of any such investments shall be deducted from United States source income. The Issuer shall provide to deposited in the Custodian in a timely manner such documentation and information Custodial Account by the Servicer out of its own funds immediately as it may require in connection with taxation, and warrants that, when given, this information is true and correct in every respect, not misleading in any way, and contains all material information. The Issuer undertakes to notify the Custodian immediately if any information requires updating or correctingrealized.
(iiic) The Custodian Servicer shall not be liable promptly report in writing to the IssuerOwner Trustee, the Security Paying Agent and the Indenture Trustee any material failure on the Servicer’s part to hold the Mortgage Files and maintain its records and computer systems as herein provided and promptly take appropriate action to remedy any such failure. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(iii) or any third party for any tax, fines or penalties payable by the Custodian or the Issuer, and shall be indemnified and/or secured accordingly, whether these result from the inaccurate completion of documents by the Issuer or any other person, or as a result of the provision to the Custodian or any third party of inaccurate or misleading information or the withholding of material information by the Issuer, the Security Trustee or any other person, or as a result from any delay of any revenue authority or any other matter beyond the control of the Custodian.
(iv) The Custodian shall notify the Issuer, the Cash Manager and the Servicer promptly upon it being notified in its capacity as Custodian of any withholding or deduction on account of tax which applies or may apply to any payment in respect of any Securities Collateral, together with all action required to be taken in order for such withholding or deduction to no longer apply.
(v) The Issuer confirms that the Custodian is authorised to deduct from any cash received any taxes or levies required by any revenue or governmental authority for whatever reason in respect of the Custody Account.
(vi) The Custodian shall perform the services set out in this paragraph 4(c) only with respect to taxation levied by the revenue authorities of the countries notified to the Issuer from time to time and the Custodian may, by notification in writing, at its absolute discretion, supplement or amend the markets in which the tax reclaim services are offered. Other than as expressly provided in this paragraph 4(c), the Custodian shall have no responsibility with regard to the Issuer's tax position or status in any jurisdiction.
(vii) The Issuer confirms that the Custodian is authorised to disclose any information requested by any revenue authority or any governmental body in relation to the Issuer or the Securities Collateral held Indenture Trustee shall immediately terminate the rights of the Servicer to perform the duties as custodian with respect to the Mortgage Files for the Issuer.
Mortgage Loans. Following the occurrence of a Servicing Default as set forth in Section 7.01(a)(i) or (viii) The ii), the Issuer shall pay or the Indenture Trustee shall, upon 60 days prior written notice, terminate the rights of the Servicer to perform the duties as custodian with respect to the Custodian an additional fee Mortgage Files for the provision Mortgage Loans. Upon the termination of the services provided under this paragraph 4(c)Servicer’s rights to perform the duties as custodian with respect to any Mortgage Files, the Servicer shall deliver each such Mortgage File to the Indenture Trustee or its designee in an amount to be agreed between accordance with the Issuer and instructions of the CustodianIndenture Trustee.
(d) Upon taking possession of the Mortgage Files, the Servicer shall (i) maintain possession of the Mortgage Files and (ii) exercise the same degree of care with respect to the possession of the Mortgage Files as it would if they were its own property. The Custodian Mortgage Files shall have no responsibility or liability at all times be held by the Servicer segregated from any similar documents. In performing its duties as custodian, the Servicer shall act with reasonable care, using that degree of skill and attention that other servicers exercise with respect to the loan files relating to all comparable loans that they service. Mortgage Files shall be held for the creation benefit of the security interests purported to be created by the Deed of Charge. The Custodian, by acknowledging the security interests so created in favour of the Security Indenture Trustee, shall not be requested or obliged to act in order to create any pledge, collateral, security interest and/or mortgage in respect of the Securities Collateral or any rights or assets relating theretoEnhancer and the Securityholders.
Appears in 1 contract
Samples: Servicing Agreement (Wachovia Mortgage Loan Trust, LLC)
