Exhibit 99.6
EXECUTION COPY
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XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
Purchaser
XXXXXX XXXXXXX CREDIT CORPORATION,
Servicer and Seller
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
Custodian
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CUSTODIAL AGREEMENT
As of May 1, 2006
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Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-7
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TABLE OF CONTENTS
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Page
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Section 1. Definitions.......................................................2
Section 2. Delivery of Custodial Files.......................................7
Section 3. [Reserved].......................................................10
Section 4. Obligations of the Custodian.....................................10
Section 5. Certification....................................................11
Section 6. Future Defects...................................................11
Section 7. Release for Servicing............................................11
Section 8. Limitation on Release............................................12
Section 9. Release for Payment..............................................12
Section 10. Fees of Custodian...............................................12
Section 11. Removal of Custodian............................................12
Section 12. Transfer of Custodial Files Upon Termination....................13
Section 13. Examination of Custodial Files..................................13
Section 14. Insurance of Custodian..........................................13
Section 15. Counterparts....................................................14
Section 16. Periodic Statements.............................................14
Section 17. Governing Law...................................................14
Section 18. Copies of Mortgage Documents....................................14
Section 19. Adverse Interest of Custodian...................................14
Section 20. Termination by Custodian........................................14
Section 21. Entire Agreement; Severability..................................15
Section 22. Term of Agreement...............................................15
Section 23. Notices.........................................................15
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Section 24. Successors and Assigns..........................................15
Section 25. Indemnification of the Purchaser................................15
Section 26. Indemnification of Custodian....................................16
Section 27. Reliance of Custodian...........................................16
Section 28. Transmission of Custodial Files.................................17
Section 29. Authorized Representatives......................................18
Section 30. Reproduction of Documents.......................................18
Section 31. Waiver of Trial by Jury.........................................18
Section 32. Submission To Jurisdiction; Waivers.............................18
Section 33. Compliance with Regulation AB...................................18
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EXHIBITS
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EXHIBIT 1 REVIEW PROCEDURES
EXHIBIT 2-A FORM OF INITIAL CUSTODIAN CERTIFICATION
EXHIBIT 2-B FORM OF FINAL CUSTODIAN CERTIFICATION
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT 4 FORM OF OPINION OF COUNSEL TO THE CUSTODIAN
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT 6 AUTHORIZED REPRESENTATIVES OF THE SERVICER
EXHIBIT 7 FORM OF LOST NOTE AFFIDAVIT
EXHIBIT 8 MORTGAGE LOAN SCHEDULE
EXHIBIT 9 SERVICING CRITERIA
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THIS CUSTODIAL AGREEMENT, dated as of May 1, 2006 ("Agreement"), by and
among Xxxxxx Xxxxxxx Mortgage Capital Inc., having an address at 1221 Avenue
of the Americas, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Purchaser"),
Xxxxxx Xxxxxxx Credit Corporation (formerly known as Xxxxxx Xxxxxxx Xxxx
Xxxxxx Credit Corporation), having an address at 0000 Xxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 ("MSCC", a "Servicer" and a "Seller"), LaSalle Bank
National Association having an address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxxx 00000 (the "Trustee"), Xxxxx Fargo Bank, National
Association, having an address at 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx
00000 (the "Master Servicer" and the "Securities Administrator") and Xxxxx
Fargo Bank, National Association, a national banking association chartered
under the laws of the United States of America, having an address at 00
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000 (the "Custodian");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Purchaser has purchased from the Seller and the Seller
has sold to the Purchaser, certain mortgage loans specified on Exhibit 1
hereto (the "Mortgage Loans"), pursuant to the terms and conditions of (i) a
Third Amended and Restated Master Mortgage Loan Purchase Agreement, dated as
of November 1, 2005 between MSCC and the Purchaser (the "Purchase Agreement")
and (ii) an Amended and Restated Master Servicing Agreement, dated as of
February 1, 2004 between MSCC and the Purchaser (the "Servicing Agreement",
and, together with the Purchase Agreement, the "Sale and Servicing
Agreements");
WHEREAS, the Mortgage Loans purchased pursuant to the Purchase
Agreement will be serviced by the Servicer pursuant to the Servicing
Agreement;
WHEREAS, the Mortgage Loans purchased pursuant to the Sale and
Servicing Agreements are being held by the Custodian as custodian for the
Purchaser pursuant to the custody agreement referenced in the Sale and
Servicing Agreements (the "Underlying Custody Agreement");
WHEREAS, the Mortgage Loans have been transferred to Xxxxxx Xxxxxxx
Capital I Inc. (the "Depositor") pursuant to an Assignment, Assumption and
Recognition Agreement, dated as of May 1, 2006, among the Seller, the
Servicer, the Depositor, the Purchaser, the Master Servicer and the Trustee;
WHEREAS, the Mortgage Loans have been transferred to the Trustee on
behalf of the Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-7 (the "Trust") pursuant
to the Pooling and Servicing Agreement dated as of May 1, 2006 (the "PSA"),
among the Depositor, the Master Servicer, the Securities Administrator and the
Trustee;
WHEREAS, the Mortgage Loans will be master serviced by the Master
Servicer pursuant to the PSA and serviced by the Servicer pursuant to the
Servicing Agreement;
WHEREAS, the Trust desires to have the Custodian take possession of
the mortgage and mortgage notes (collectively, the "Mortgage Notes") for the
Mortgage Loans,
along with certain other documents specified herein, as the Custodian of the
Trust or subsequent purchasers of the Mortgage Loans, in accordance with the
terms and conditions hereof; and
NOW, THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
For purposes of this Agreement the following capitalized terms shall
have the respective meanings set forth below.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage Loan
purchased pursuant to a Purchase Agreement.
Affiliate: With respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Agreement: This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of
the Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form (except for the omission
of the name of the assignee), sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect the sale of the
Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan which by its original terms
or any modifications thereof provides for amortization beyond its scheduled
maturity date.
Business Day: Any day other than (i) a Saturday or Sunday, (ii) a day
on which banking and savings and loan institutions in the State of New York,
or the state in which the Servicer's servicing operations are located or (iii)
the state in which the Custodian's operations are located, are authorized or
obligated by law or executive order to be closed.
Certification: A final certification as to each Mortgage Loan, which
Certification is delivered to the Purchaser by the Custodian in the form
annexed hereto as Exhibit 2.
Closing Date: May 31, 2006.
CLTV: As of any date and as to any Second Lien Loan, the ratio,
expressed as a percentage, of the (a) sum of (i) the outstanding principal
balance of the Second Lien Loan and (ii) the outstanding principal balance as
of such date of any mortgage loan or mortgage loans that
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are senior or equal in priority to the Second Lien Loan and which are secured
by the same Mortgaged Property to (b) the appraised value of the Mortgaged
Property.
Co-op: A private, cooperative housing corporation, having only one
class of stock outstanding, which owns or leases land and all or part of a
building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated
to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Custodian: Xxxxx Fargo Bank, National Association, or its successor
in interest or permitted assigns, or any successor to the Custodian under this
Agreement as herein provided.
Custodial File: As to each Mortgage Loan, any mortgage loan documents
which are delivered to the Custodian or which at any time come into the
possession of the Custodian.
Cut-off Date: May 1, 2006.
Due Date: The day of the month on which the Monthly Payment is due on
a Mortgage Loan, exclusive of any days of grace.
Xxxxxx Xxx: The Federal National Mortgage Association, or any
successor thereto.
First Lien Loan: Any Mortgage Loan secured by a first lien on the
related Mortgaged Property.
Fixed Rate Mortgage Loan: A fixed rate mortgage loan purchased
pursuant to a Purchase Agreement.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Gross Margin: With respect to each Adjustable Rate Mortgage Loan, the
fixed percentage amount set forth in the related Mortgage Note which amount is
added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost Loan: A Mortgage Loan classified as (a) a "high cost" loan
under the Home Ownership and Equity Protection Act of 1994, (b) a "high cost
home," "threshold," "covered," "high risk home," or "predatory" loan under any
other applicable federal, state or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory
scrutiny or additional legal liability for residential mortgage loans having
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high interest rates, points and/or fees) or (c) a Mortgage Loan categorized as
High Cost pursuant to Appendix E of Standard & Poor's Glossary. For avoidance
of doubt, the parties agree that this definition shall apply to any law
regardless of whether such law is presently, or in the future becomes, the
subject of judicial review or litigation.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor's Glossary.
Index: The index indicated in the related Mortgage Note for each
Adjustable Rate Mortgage Loan.
Interest Rate Adjustment Date: With respect to each Adjustable Rate
Mortgage Loan, the date, specified in the related Mortgage Note and the
Mortgage Loan Schedule, on which the Mortgage Interest Rate is adjusted.
Lifetime Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage
Interest Rate at the time of origination of such Adjustable Rate Mortgage Loan
by more than the Lifetime Rate Cap set forth as an amount per annum on the
Mortgage Loan Schedule.
Loan-to-Value Ratio or LTV: With respect to any Mortgage Loan, the
ratio (expressed as a percentage) of the outstanding principal amount of the
Mortgage Loan as of the Cut-off Date (unless otherwise indicated), to the
lesser of (a) the Appraised Value of the Mortgaged Property at origination and
(b) if the Mortgage Loan was made to finance the acquisition of the related
Mortgaged Property, the purchase price of the Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a Delaware
corporation, and its successors in interest.
MERS Designated Mortgage Loan: Any Mortgage Loans for which (a) the
applicable Seller has designated or will designate MERS as, and has taken or
will take such action as is necessary to cause MERS to be, the mortgagee of
record, as nominee for such Seller, in accordance with MERS Procedure Manual,
(b) such Seller has designated or will designate the Purchaser as the Investor
on the MERS(R) System, and (c) such Seller has designated or will designate
the Custodian as the Custodian on the MERS(R) System. The Purchaser or its
designee will advise the Custodian in writing of any MERS Designated Mortgage
Loans being delivered on any Delivery Date.
MERS Identification Number: The eighteen digit number permanently
assigned to each MERS Designated Mortgage Loan.
MERS Procedures Manual: The MERS Procedures Manual, as it may be
amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS Designated
Mortgage Loans and other information.
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MERS(R) System: MERS electronic registry system, as more particularly
described in the MERS Procedure Manual.
Monthly Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a Co-op Loan,
the mortgage, deed of trust or other instrument securing a Mortgage Note,
which creates a first lien, in the case of a First Lien Loan, or a second
lien, in the case of a Second Lien Loan, on an unsubordinated estate in fee
simple in real property securing the Mortgage Note; except that with respect
to real property located in jurisdictions in which the use of leasehold
estates for residential properties is a widely-accepted practice, the
mortgage, deed of trust or other instrument securing the Mortgage Note may
secure and create a first lien in the case of a First Lien Loan, and with
respect to a Second Lien Loan, a second lien, in each case, upon a leasehold
estate of the Mortgagor. With respect to a Co-op Loan, the Security Agreement.
Mortgage Interest Rate: The annual rate of interest borne on a
Mortgage Note with respect to each Mortgage Loan in accordance with the
provisions of the Mortgage Note.
Mortgage Interest Rate Cap: With respect to an Adjustable Rate
Mortgage Loan, the limit on each Mortgage Interest Rate adjustment as set
forth in the related Mortgage Note.
Mortgage Loan Package: The pool of Mortgage Loans, which shall be
purchased by the Purchaser from the Seller on the Closing Date and designated
as being held by the Custodian.
Mortgage Loan Schedule: The schedule of Mortgage Loans setting forth
the following information with respect to each Mortgage Loan in the Mortgage
Loan Package as of the close of business on the Cut-off Date: (1) the
applicable Seller's Mortgage Loan identifying number; (2) the Mortgagor's
name; (3) the street address of the Mortgaged Property including the city,
state and zip code; (4) a code indicating whether the Mortgagor is
self-employed; (5) a code indicating whether the Mortgaged Property is
owner-occupied; (6) the number and type of residential units constituting the
Mortgaged Property; (7) the original months to maturity or the remaining
months to maturity from the Cut-off Date, in any case based on the original
amortization schedule and, if different, the maturity expressed in the same
manner but based on the actual amortization schedule; (8) with respect to each
First Lien Loan, the Loan-to-Value Ratio at origination, and with respect to
each Second Lien Loan, the CLTV at origination; (9) the Mortgage Interest Rate
as of the Cut-off Date; (10) the day of the month on which the Monthly Payment
is due on the Mortgage Loan and, if such date is not consistent with the Due
Date currently in effect, such Due Date; (11) the stated maturity date; (12)
the first payment date; (13) the amount of the Monthly Payment as of the
Cut-off Date; (14) the last payment date on which a payment was actually
applied to the outstanding principal balance; (15) the original principal
amount of the Mortgage Loan; (16) the principal balance of the Mortgage Loan
as of the close of business on the Cut-off Date, after deduction of payments
of principal due and collected on or before the Cut-off Date; (17) delinquency
status as of the Cut-off Date; (18) with respect to each Adjustable Rate
Mortgage Loan, the Interest Rate Adjustment Date; (19) with respect to each
Adjustable Rate Mortgage Loan, the Gross Margin; (20) with respect to each
Adjustable Rate
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Mortgage Loan, the Lifetime Rate Cap under the terms of the Mortgage Note;
(21) with respect to each Adjustable Rate Mortgage Loan, a code indicating the
type of Index; (22) the type of Mortgage Loan (i.e., Fixed or Adjustable Rate
Mortgage Loan, First or Second Lien Loan); (23) a code indicating the purpose
of the loan (i.e., purchase, rate and term refinance, equity take-out
refinance); (24) a code indicating the documentation style (i.e., full,
alternative or reduced); (25) asset verification (Y/N); (26) the loan credit
classification (as described in the Underwriting Guidelines); (27) whether
such Mortgage Loan provides for a Prepayment Penalty and, if applicable, the
Prepayment Penalty period; (28) the Mortgage Interest Rate as of origination;
(29) the credit risk score (FICO score); (30) the date of origination; (31)
with respect to Adjustable Rate Mortgage Loans, the Mortgage Interest Rate
adjustment period; (32) with respect to each Adjustable Rate Mortgage Loan,
the Mortgage Interest Rate adjustment percentage; (33) with respect to each
Adjustable Rate Mortgage Loan, the Mortgage Interest Rate floor; (34) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate Cap
as of the first Interest Rate Adjustment Date; (35) with respect to each
Adjustable Rate Mortgage Loan, the Periodic Rate Cap subsequent to the first
Interest Rate Adjustment Date; (36) with respect to each Adjustable Rate
Mortgage Loan, a code indicating whether the Mortgage Loan provides for
negative amortization; (37) with respect to each Adjustable Rate Mortgage Loan
with negative amortization, the negative amortization limit; (38) a code
indicating whether the Mortgage Loan is a Home Loan; (39) a code indicating
whether the Mortgage Loan is a Balloon Mortgage Loan; (40) the Due Date for
the first Monthly Payment; (41) the original Monthly Payment due; (42) a code
indicating the PMI Policy provider and percentage of coverage, if applicable;
(43) Appraised Value; (44) appraisal type; (45) automated valuation model
(AVM); (46) appraisal date; (47) with respect to the related Mortgagor, the
debt-to-income ratio; and (48) the MERS Identification Number, if any. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set forth the following information, as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; (4) the weighted average maturity of the Mortgage
Loans; (5) the Cut-off Date; and (6) the applicable Closing Date. The Mortgage
Loan Schedule in connection with the Closing Date is attached hereto as
Exhibit 8.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is not a
Co-op Loan, the real property (or leasehold estate, if applicable) securing
repayment of the debt evidenced by a Mortgage Note. With respect to a Co-op
Loan, the stock allocated to a dwelling unit in the residential cooperative
housing corporation that was pledged to secure such Co-op Loan and the related
Co-op Lease.
Mortgagor: The obligor on a Mortgage Note.
Periodic Rate Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an
Interest Rate Adjustment Date above or below the Mortgage Interest Rate
previously in effect. The Periodic Rate Cap for each Adjustable Rate Mortgage
Loan is the rate set forth as such on the Mortgage Loan Schedule.
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Person: Any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof.
PMI Policy: A policy of primary mortgage guaranty insurance issued by
an insurer acceptable under the Seller's underwriting guidelines and qualified
to do business in the jurisdiction where the Mortgaged Property is located.
Prepayment Charge: With respect to each Mortgage Loan, the penalty if
the Mortgagor prepays such Mortgage Loan as provided in the related Mortgage
Note or Mortgage.
Purchase Agreement: With respect to any Mortgage Loan, the agreement
pursuant to which the Purchaser purchases such Mortgage Loan.
Purchaser: Xxxxxx Xxxxxxx Mortgage Capital Inc., or its successor in
interest or assigns, or any successor to the Purchaser under a Sale and
Servicing Agreement as therein provided.
Second Lien Loan: A Mortgage Loan secured by a second lien Mortgage
on the related Mortgaged Property.
Security Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: Xxxxxx Xxxxxxx Credit Corporation (formerly known as Xxxxxx
Xxxxxxx Xxxx Xxxxxx Credit Corporation), or its successor in interest or
assigns, or any successor to the Seller under the Sale and Servicing
Agreements as therein provided.
Servicer: With respect to any Mortgage Loan, the Person acting as
servicer under the Servicing Agreement.
Standard & Poor's: Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R) Glossary,
as may be in effect from time to time.
Section 2. Delivery of Custodial Files.
The Seller will deliver and release to the Custodian on or prior to
May 31, 2006 (the "Closing Date") the following original documents pertaining
to each of the Mortgage Loans identified in the Mortgage Loan Schedule:
(a) the original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of __________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. Any
endorsement may be contained on an allonge (or in lieu of an original
endorsement or allonge, a facsimile or a portable document
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format (PDF) copy thereof). If the Mortgage Loan was acquired by the Seller in
a merger, the endorsement must be by "[Last Endorsee], successor by merger to
[name of predecessor]". If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must be
by "[Last Endorsee], formerly known as [previous name]";
(b) the original of any guarantee executed in connection with the
Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans, the
original Mortgage with evidence of recording thereon. With respect to any
Co-op Loan, an original or copy of the Security Agreement;
(d) the originals of all assumption, modification, consolidation or
extension agreements, if any, with evidence of recording thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans, the
original Assignment of Mortgage for each Mortgage Loan (or, in lieu of an
original signature page of the Assignment of Mortgage, a facsimile or a
Portable Document Format (PDF) copy thereof), in form and substance acceptable
for recording (except with respect to MERS Designated Mortgage Loans). The
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was
acquired by the Seller in a merger, the Assignment of Mortgage must be made by
"[Seller], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Seller while doing business under another
name, the Assignment of Mortgage must be by "[Seller], formerly known as
[previous name]". With respect to any Co-op Loan, an original or copy of the
assignment of the Security Agreement endorsed in blank, together with all
intervening assignments thereof;
(f) with respect to Mortgage Loans that are not Co-op Loans, the
originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Mortgage Loan, MERS) with evidence of recording
thereon;
(g) with respect to Mortgage Loans that are not Co-op Loans, the
original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy
binder or commitment for title certified to be true and complete by the title
insurance company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage; and
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease and
the assignment of such Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller; (ii) the stock
certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the
interests of the mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; (iv) copies of the financing
statement filed by the originator as secured party and, if
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applicable, a filed UCC-3 Assignment of the subject security interest showing
a complete chain of title, together with an executed UCC-3 Assignment of such
security interest by the Seller; and
(j) if any of the above documents has been executed by a person
holding a power of attorney, an original or photocopy of such power certified
by the Seller to be a true and correct copy of the original.
In the event any document required to be delivered to the Custodian
in the Custodial Agreement, including an original or copy of any document
submitted for recordation to the appropriate public recording office, is not
so delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing, within 180 days following the Closing Date (other than
with respect to the Assignments of Mortgage which shall be delivered to the
Custodian in blank and recorded subsequently by the Purchaser or its
designee), and in the event that the Seller does not cure such failure within
30 days of discovery or receipt of written notification of such failure from
the Purchaser, the related Mortgage Loan shall, upon the request of the
Purchaser, be repurchased by the Seller at the price and in the manner
specified in Subsection 9.03 of the Purchase Agreement. The foregoing
repurchase obligation shall not apply in the event that the Seller cannot
deliver an original document submitted for recordation to the appropriate
public recording office within the specified period due to a delay caused by
the recording office in the applicable jurisdiction; provided that the Seller
shall instead deliver a recording receipt of such recording office or, if such
recording receipt is not available, an officer's certificate of a servicing
officer of the Seller, confirming that such documents have been accepted for
recording; provided that, upon request of the Purchaser and delivery by the
Purchaser to the Seller of a schedule of the Mortgage Loans, the Seller shall
reissue and deliver to the Purchaser or its designee said officer's
certificate.
From time to time, the Seller shall forward to the Custodian
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
Seller, in accordance with the terms of the related Purchase Agreement. All
such mortgage documents held by the Custodian as to each Mortgage Loan shall
constitute the "Custodial File".
At the request of the Purchaser, the Seller shall submit for
recording at the sole expense of the Seller, in the appropriate public office
for real property records, each assignment referred to in Sections 2(e) and
(f) above; provided, however, that the assignments referred to in Section 2(e)
shall not be recorded for Mortgages for which the Mortgaged Property is
located in California (unless required by the Purchaser). In the event that
any such assignment is lost or returned unrecorded because of a defect
therein, the Seller shall promptly prepare a substitute assignment to cure
such defect and thereafter cause each such assignment to be duly recorded.
On or prior to the Closing Date the Seller shall deliver to the
Custodian a copy of the Mortgage Loan Schedule in an electronic, machine
readable medium on a form mutually acceptable to the Seller and the Custodian.
Notwithstanding anything to the contrary contained in this Section 2,
in those instances where the public recording office retains or loses the
original Mortgage or assignment after it has been recorded, the obligations of
the Seller shall be deemed to have been satisfied
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upon delivery by the Seller to the Purchaser or its designee prior to the
Closing Date of a copy of such Mortgage or assignment, as the case may be,
certified (such certification to be an original thereof) by the public
recording office to be a true and complete copy of the recorded original
thereof.
Section 3. [Reserved].
Section 4. Obligations of the Custodian.
(a) The Custodian shall maintain continuous custody of all items
constituting the Custodial Files in secure facilities in accordance with
customary standards for such custody and shall reflect in its records the
interest of the Trustee, on behalf of the Trust therein. Each Mortgage Note
(and Assignment of Mortgage) shall be maintained in fire resistant facilities.
(b) With respect to the documents constituting the Custodial File
relating to a Mortgage Loan listed on the Mortgage Loan Schedule, the
Custodian shall (i) act exclusively as the bailee of, and Custodian for, the
Trustee, on behalf of the Trust, (ii) hold all documents constituting such
Custodial File received by it for the exclusive use and benefit of the
Trustee, on behalf of the Trust, and (iii) make disposition thereof only in
accordance with the terms of this Custodial Agreement.
(c) In the event that (i) the Trustee, the Purchaser, the Seller, or
the Custodian shall be served by a third party with any type of levy,
attachment, writ or court order with respect to any Custodial File or any
document included within a Custodial File or (ii) a third party shall
institute any court proceeding by which any Custodial File or a document
included within a Custodial File shall be required to be delivered otherwise
than in accordance with the provisions of this Custodial Agreement, the party
receiving such service shall promptly deliver or cause to be delivered to the
other parties to this Custodial Agreement copies of all court papers, orders,
documents and other materials concerning such proceedings. The Custodian
shall, to the extent permitted by law, continue to hold and maintain all the
Custodial Files that are the subject of such proceedings pending a final,
nonappealable order of a court of competent jurisdiction permitting or
directing disposition thereof. Upon final determination of such court, the
Custodian shall dispose of such Custodial File or any document included within
such Custodial File as directed by the Purchaser which shall give a direction
consistent with such determination. Expenses and fees (including attorney's
fees) of the Custodian incurred as a result of such proceedings shall be borne
by the Trust.
(d) The Trustee, on behalf of the Trust, hereby acknowledges that the
Custodian shall not be responsible for the validity and perfection of the
Trust's security interest in the Mortgage Loans hereunder, other than the
Custodian's obligation to take possession of the Custodial Files as set forth
in Section 2 hereof
(e) The Custodian shall have no duties or responsibilities except
those that are specifically set forth herein, or as subsequently agreed in
writing by the parties hereto, and no implied covenants or obligations shall
be read into this Agreement against the Custodian.
(f) The Custodian shall have no responsibility nor duty with respect
to any Custodial Files while not in its possession.
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(g) The Custodian shall be under no obligation to make any
investigation into the facts or matters stated in any resolution, exhibit,
request, representation, opinion, certificate, statement, acknowledgement,
consent, order or document in the Custodial File.
(h) The Custodian shall not be liable with respect to any action
taken or omitted to be taken in accordance with the written direction,
instruction, acknowledgement, consent or any other communication from the
Trustee or the Master Servicer.
(i) The provisions of this Section 4 shall survive the resignation or
removal of the Custodian and the termination of this Custodial Agreement.
(j) The Custodian shall not be an agent of the Trustee and the
Trustee shall have no responsibility or liability on the actions or omissions
of the Custodian.
Section 5. Certification.
On or prior to the Closing Date, and as a condition to such closing,
the Custodian shall deliver via facsimile (with original to follow the next
Business Day) to the Purchaser and the Trustee a Certification indicating
whether or not all documents required to be delivered to it are in its
possession. The Custodian shall deliver to the Purchaser and the Trustee a
Certification (which may be delivered electronically by e-mail) to the effect
that, as to each Mortgage Loan listed in the Mortgage Loan Schedule (other
than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified in such certification as not covered by such certification): (i)
all documents required to be delivered to it are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) each Custodial File has been reviewed in
accordance with the review procedures set forth in Exhibit 1 hereto; and (iv)
each Mortgage Note has been endorsed as provided in Section 2 of this
Agreement. The Custodian shall not be responsible to verify the validity,
sufficiency or genuineness of any document in any Custodial File. Such
Certification shall include a list of any exceptions outstanding. Thereafter,
the Custodian shall update the Certification (which shall be delivered in
EXCEL format by e-mail) every thirty (30) days or upon request until all
Custodial Files are certified to be complete.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian discovers any
defect with respect to the Custodial File, the Custodian shall give written
specification of such defect to the Purchaser. For purposes of this section,
"defect" shall mean a failure of a document to correspond to the information
set forth in the Mortgage Loan Schedule or the absence of a Mortgage File or
any part thereof or any other document required pursuant to this Agreement.
The Seller shall be solely responsible for completing or correcting any
missing, incomplete or inconsistent documents, and the Custodian shall not be
responsible or liable for taking any such action, causing the Seller or any
other person or entity to do so or notify any person that ay such action has
or has not been taken.
Section 7. Release for Servicing.
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From time to time and as appropriate for the foreclosure or servicing
of any of the Mortgage Loans, the Custodian shall, upon receipt in writing or
facsimile or electronic form from the Trustee or the Master Servicer of a
request for release of documents and receipt in the form annexed hereto as
Exhibit 3 (each, a "Request for Release"), release to the Trustee or the
Master Servicer, as applicable, the Custodial File set forth in such Request
for Release within two (2) Business Days of receipt of such request. The
Trustee or the Master Servicer, as applicable, shall return to the Custodian
the Custodial File when the Trustee's or the Master Servicer's need therefor
in connection with such foreclosure or servicing no longer exists, unless the
Mortgage Loan shall be liquidated. In such a case, upon receipt by the
Custodian of an additional Request for Release certifying such liquidation
from the Trustee or the Master Servicer, the Request for Release submitted
pursuant to the first sentence of this Section 7 shall be deemed released by
the Custodian to the Trustee or the Master Servicer.
Section 8. Limitation on Release.
The foregoing provision respecting release to the Trustee or its
designee (which may be the Master Servicer) of the Custodial Files or
documents by the Custodian shall be operative only to the extent that the
Custodian shall not have released to the Trustee or its designee (which may be
the Master Servicer) Custodial Files or documents (including those requested)
pertaining to more than fifteen (15) Mortgage Loans at the time. Any
additional Custodial Files or documents requested to be released to the
Trustee or its designee (which may be the Master Servicer) may be released
upon written authorization of the Trustee or its designee (which may be the
Master Servicer). The limitations of this paragraph shall not apply to the
release of Custodial Files under Section 9 below.
Section 9. Release for Payment.
Upon the repurchase of any Mortgage Loan pursuant to the Purchase
Agreement, or upon the payment in full of any Mortgage Loan, and upon receipt
by the Custodian of the Trustee's or the Master Servicer's written Request for
Release in written or facsimile or electronic form (which certification shall
include a statement to the effect that all amounts payable to the Securities
Administrator in connection with a repurchase have been remitted to the
Securities Administrator as provided in the Purchase Agreement), the Custodian
shall promptly release the related Custodial File in accordance with such
Request for Release.
Section 10. Fees of Custodian.
The Custodian shall charge such fees and expenses for its services
under this Agreement as are set forth in a separate agreement between the
Custodian, the Purchaser and the Securities Administrator, the payment of
which fees, shall be solely the obligation of the Securities Administrator.
The obligations of the Securities Administrator to pay Custodian for such fees
and expenses in connection with services provided by Custodian hereunder shall
survive the termination of this agreement, or the resignation or removal of
the Custodian.
Section 11. Removal of Custodian.
The Trustee, with or without cause, may (but is not obligated to,
unless requested to do so by a majority of Certificateholders) (i) require the
Custodian to complete the
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endorsements on the Mortgage Notes and to complete and record the Assignments
of Mortgage (in either case, at no expense to the Custodian), and/or (ii) upon
at least 45 days' notice remove and discharge the Custodian from the
performance of its duties under this Agreement by written notice from the
Trustee to the Custodian. Having given notice of such removal, the Trustee
promptly shall appoint a successor Custodian (and if the Custodian is removed
at the direction of a majority of Certificateholders such successor shall be
selected by such majority) to act on behalf of the Trustee by written
instrument, one original counterpart of which instrument shall be delivered to
the Trustee, with an original to the successor Custodian. In addition, the
Trustee may terminate the Custodian upon written notice with respect to some
or all of the Mortgage Loans upon the sale or other transfer of such Mortgage
Loans to a subsequent purchaser. In the event of any removal, the Custodian
shall, at the expense of the Trust, promptly transfer to the successor
custodian or subsequent purchaser, as directed, all Custodial Files being
administered under this Agreement relating to such Mortgage Loans, and shall
assign the Mortgages and endorse the Mortgage Notes to the successor Custodian
or subsequent purchaser if the endorsements on the Mortgage Notes and the
Assignments of Mortgages have been completed in the name of the Custodian.
Section 12. Transfer of Custodial Files Upon Termination.
If the Custodian is furnished written evidence from the Trustee or
the Master Servicer that the Servicing Agreement has been terminated as to any
or all of the Mortgage Loans, upon written request of the Trustee or the
Master Servicer, as applicable, and, if requested by the Custodian, receipt of
proof satisfactory to the Custodian of the ownership of the Mortgage Loans,
the Custodian shall release to such persons as the Purchaser shall designate
the Custodial Files relating to such Mortgage Loans, and shall assign the
Mortgages and endorse the Mortgage Notes as the Purchaser shall request at the
Trust's expense.
Section 13. Examination of Custodial Files.
Upon two (2) Business Days' prior written notice to the Custodian,
the Trustee, the Purchaser and their respective agents, accountants, attorneys
and auditors will be permitted during normal business hours to examine at the
expense of the requesting party the Custodial Files, documents, records and
other papers in the possession of or under the control of the Custodian
relating to any or all of the Mortgage Loans in the Mortgage Loan Package.
Section 14. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times during
the existence of this Agreement and keep in full force and effect fidelity
insurance, theft of documents insurance, forgery insurance and errors and
omissions insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance
typically maintained by banks which act as Custodian. The minimum coverage
under any such bond and insurance policies shall be at least equal to the
corresponding amounts required by Xxxxxx Xxx in the Xxxxxx Mae Mortgage-Backed
Securities Selling and Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Mac
Seller's & Servicer's Guide. A certificate of the respective insurer as to
each such policy, with a copy of such policy attached, shall be furnished to
the Purchaser and the Trustee upon request.
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Section 15. Counterparts.
For the purpose of facilitating the execution of this Agreement as
herein provided and for other purposes, this Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be an original, and such counterparts shall constitute and be one
and the same instrument.
Section 16. Periodic Statements.
Upon the written request of the Trustee or the Master Servicer, the
Custodian shall provide to the Trustee or the Master Servicer a list of all
the Mortgage Loans for which the Custodian holds a Custodial File pursuant to
this Agreement (which such list may be provided electronically by e-mail).
Such list may be in the form of a copy of the Mortgage Loan Schedule with
manual deletions to specifically denote any Mortgage Loans paid off or
repurchased since the date of this Agreement.
Section 17. Governing Law.
This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to the conflicts of laws principles thereof,
and the obligations, rights, and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 18. Copies of Mortgage Documents.
Upon the request of the Trustee or the Master Servicer and at the
cost and expense of the Trust, the Custodian shall provide to the Trustee or
the Master Servicer copies of the Mortgage Notes, Mortgages, Assignments of
Mortgage and other documents relating to one or more of the Mortgage Loans.
Section 19. Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and warrants
that it currently holds, and during the existence of this Agreement shall
hold, no adverse interest, by way of security or otherwise, in any Mortgage
Loan, and hereby waives and releases any such interest which it may have in
any Mortgage Loan as of the date hereof.
Section 20. Termination by Custodian.
The Custodian may terminate its obligations under this Agreement upon
at least 60 days' notice to the Purchaser. In the event of such termination,
the Purchaser shall appoint a successor Custodian. The payment of such
successor Custodian's fees and expenses shall be solely the responsibility of
the Securities Administrator. Upon such appointment, the Custodian shall (i)
promptly notify the Purchaser and (ii) promptly transfer to the successor
Custodian, as directed, all Custodial Files being administered under this
Agreement, and shall assign the Mortgages and endorse the Mortgage Notes to
the successor Custodian. In the event of termination by the Custodian, then
such transfer shall be at the expense of the Custodian; provided, however, in
the event that the Custodian terminates its obligations hereunder due in part
to nonpayment of the Custodian's fees pursuant to Section 10, then such
transfer shall be at
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the expense of the Purchaser. In the event that no successor Custodian shall
have been appointed and shall have accepted such appointment before the
expiration of such 60 day notice period, the terminating Custodian may
petition any court of competent jurisdiction to appoint a successor and
promptly notify the Purchaser of such petition.
Section 21. Entire Agreement; Severability.
This Agreement contains the entire agreement with respect to the
rights and obligations of the Custodian among the parties hereto. If any
provisions of this Custodial Agreement shall be held invalid or unenforceable,
this Agreement shall be construed as if not containing such provisions, and
the rights and obligations of the parties hereto shall be construed and
enforced accordingly.
Section 22. Term of Agreement.
Unless terminated pursuant to Section 11 hereof, this Agreement shall
terminate upon the final payment or other liquidation (or advance with respect
thereto) of the last Mortgage Loan or the disposition of all property acquired
upon foreclosure or deed in lieu of foreclosure of any Mortgage Loan, and the
final remittance of all funds due the Securities Administrator under the
Servicing Agreement. In such event all documents remaining in the Custodial
Files shall be released in accordance with the written instructions of the
Purchaser.
Section 23. Notices.
Unless otherwise specifically provided herein, all demands, notices
and communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed, by registered or certified mail, return receipt
requested, or, if by other means, when received by the recipient party at the
address shown on the first page hereof, or at such other addresses as may
hereafter be furnished to the other parties by like notice. Any such demand,
notice or communication hereunder shall be deemed to have been received on the
date delivered to or received at the premises of the addressee (as evidenced,
in the case of registered or certified mail, by the date noted on the return
receipt).
Section 24. Successors and Assigns.
This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Custodian may be
merged or converted or with which it may be consolidated, or any entity
resulting from any merger, conversion or consolidation to which the Custodian
shall be a party, or any entity succeeding to the business of the Custodian,
shall be the successor of the Custodian hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
Section 25. Indemnification of the Purchaser.
In the event that the Custodian fails to produce a Mortgage Note,
Assignment of Mortgage or any other document related to a Mortgage Loan that
was in its possession pursuant to Section 2 within five (5) Business Days
after required or requested by the Purchaser or its
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designee, and provided, that (i) Custodian previously delivered to the Trustee
or the Master Servicer a Certification with respect to such document; (ii)
such document is not outstanding pursuant to a request for release of
documents and receipt in the form annexed hereto as Exhibit 3; and (iii) such
document was held by the Custodian on behalf of the Trustee (a "Custodial
Delivery Failure"), then the Custodian shall (a) with respect to any missing
Mortgage Note, promptly deliver to such Purchaser or its designee upon
request, a Lost Note Affidavit in the form of Exhibit 7 annexed hereto and
(b)with respect to any missing document related to such Mortgage Loan
including but not limited to, a missing Mortgage Note, indemnify the Trustee
in accordance with the succeeding paragraph of this Section 25.
The Custodian agrees to indemnify and hold the Purchaser, the Trustee
and the Master Servicer harmless against any and all direct liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements, including reasonable attorneys' fees, that may be
imposed on, incurred by, or asserted against it or them directly relating to
or arising out of such Custodial Delivery Failure. In no event shall the
Custodian or its directors, officers, agents and employees be liable for any
special, indirect or consequential damages from any action taken or omitted to
be taken by it or them hereunder or in connection herewith even if advised of
the possibility of such damages. The foregoing indemnification shall survive
any termination or assignment of the Custodial Agreement.
Section 26. Indemnification of Custodian.
Except as set forth in Section 25, neither the Custodian nor any of
its directors, officers, agents or employees, shall be liable to any Person
for any action taken or omitted to be taken by it or them hereunder or in
connection herewith in good faith and believed by it or them to be within the
purview of this Custodial Agreement, except for a breach of its obligations
hereunder, which breach was caused by its or their own negligence, bad faith
or willful misconduct. In no event shall the Custodian or its directors,
officers, agents and employees be held liable to any Person for any special,
indirect or consequential damages resulting from any action taken or omitted
to be taken by it or them hereunder or in connection herewith even if advised
of the possibility of such damages.
The Trust agrees to indemnify and hold the Custodian and its
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements, including reasonable attorneys' fees,
that may be imposed on, incurred by, or asserted against it or them in any way
relating to or arising out of this Custodial Agreement or any action taken or
not taken by it or them hereunder except for such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements were imposed on, incurred by or asserted against the Custodian
because of the breach by the Custodian of its obligations hereunder, which
breach was caused by negligence, bad faith or willful misconduct on the part
of the Custodian or any of its directors, officers, agents or employees. The
foregoing indemnification shall survive any termination or assignment of this
Custodial Agreement or the removal or resignation of the Custodian hereunder.
Section 27. Reliance of Custodian.
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(a) In the absence of bad faith on the part of the Custodian, the
Custodian may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificate or opinion
furnished to the Custodian, believed by the Custodian to have been signed or
presented by an Authorized Representative and conforming in form only to the
requirements of this Custodial Agreement; but in the case of any certificate
or opinion which by any provision hereof is specifically required to be
furnished to the Custodian, the Custodian shall be under a duty to examine the
same in accordance with the requirements of this Custodial Agreement.
(b) In the absence of bad faith on the part of the Custodian, the
Custodian may rely upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
coupon or any other communication believed by the Custodian to be genuine and
to have been signed or made by an Authorized Representative.
(c) This Section shall not be construed to limit the effect of any
provision of this Custodial Agreement respecting the rights or remedies of the
Custodian or any other right of the Custodian.
(d) No provision of this Agreement shall require Custodian to expend
or risk its own funds or otherwise incur financial liability (other than
expenses or liabilities otherwise required to be incurred by the express terms
of this Agreement) in the performance of its duties under this Agreement if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity is not reasonably assured to it.
(e) Any corporation into which Custodian may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which Custodian shall be a party, or
any corporation succeeding to the business of Custodian shall be the successor
of Custodian hereunder without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto
except where an instrument of transfer or assignment is required by law to
effect such succession, anything herein to the contrary notwithstanding.
Section 28. Transmission of Custodial Files.
Written instructions as to the method of shipment and shipper(s) the
Custodian is directed to utilize in connection with transmission of mortgage
files and loan documents in the performance of the Custodian's duties
hereunder shall be delivered by the Purchaser or its designee to the Custodian
prior to any shipment of any mortgage files and loan document hereunder at the
cost and expense of the Purchaser and the Purchaser will maintain such
insurance against loss or damage to mortgage files and loan documents as the
Purchaser deems appropriate. Without limiting the generality of the provisions
of Sections 25 and 26 above, it is expressly agreed that in no event shall the
Custodian have any liability for any losses or damages to any person,
including, without limitation, the Purchaser or its designees arising out of
actions of the Custodian consistent with instructions of Purchaser or its
designees. In the event the Custodian does not receive such written
instructions, the Custodian may utilize any nationally recognized courier
service and shall be indemnified as provided herein for such usage.
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Section 29. Authorized Representatives.
Each individual designated as an authorized representative of the
parties hereto (each, an "Authorized Representative"), is authorized to give
and receive notices, requests and instructions and to deliver certificates and
documents in connection with this Custodial Agreement on their behalf, and the
specimen signature for each such Authorized Representative, initially
authorized hereunder, is set forth on Exhibits 5, and 6 hereof, respectively.
From time to time, the parties hereto may, by delivering to the others a
revised exhibit, change the information previously given pursuant to this
Section 29, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding
exhibit.
Section 30. Reproduction of Documents.
This Custodial Agreement and all documents relating thereto except
with respect to the Custodial File, including, without limitation, (a)
consents, waivers and modifications which may hereafter be executed, and (b)
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 31. Waiver of Trial by Jury.
THE PARTIES HERETO EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 32. Submission To Jurisdiction; Waivers.
The Custodian hereby irrevocably and unconditionally:
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF
ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES
OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM
ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY
SUCH COURT OR THAT SUCH
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ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR
ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET
FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN
NOTIFIED; AND
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO XXX IN ANY OTHER JURISDICTION.
Section 33: Compliance With Regulation AB
The Purchaser and the Custodian further agree as follows:
(a) Defined Terms: The following terms are used in this Section 33 as
defined below:
Commission: The United States Securities and Exchange Commission.
Exchange Act. The Securities Exchange Act of 1934, as amended.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction. Any transaction involving either (1) a
sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
(b) Additional Information to Be Provided by the Custodian. For so
long as the Certificates are outstanding, for the purpose of satisfying
the Company's reporting obligation under the Exchange Act with respect
to any class of Certificates, the Custodian shall (a) notify the Company
in writing of any material litigation or governmental
19
proceedings pending against the Custodian that would be material to
Certificateholders, and (b) provide to the Company a written description
of such proceedings. Any notices and descriptions required under this
Section 33 shall be given no later than five Business Days prior to the
Determination Date following the month in which the Custodian has
knowledge of the occurrence of the relevant event. As of the date the
Company or Master Servicer files each Report on Form 10-D or Form 10-K
with respect to the Certificates, the Custodian will be deemed to
represent that any information previously provided under this Section 33,
if any, is materially correct and does not have any material omissions
unless the Custodian has provided an update to such information.
(c) Report on Assessment of Compliance and Attestation: For so
long as the Purchaser or the Master Servicer, as applicable, is filing an
annual report on Form 10-K in accordance with the Exchange Act and the rules
and regulations of the Commission, on or before March 12 of each calendar
year, commencing in 2007, the Custodian shall:
(A) deliver to the Purchaser and the Master Servicer a report
(in form and substance reasonably satisfactory to the Purchaser and such
Master Servicer ) regarding the Custodian's assessment of compliance with the
Servicing Criteria during the immediately preceding calendar year, as required
under Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122 of Regulation
AB. Such report shall be addressed to the Purchaser and the Master Servicer
and signed by an authorized officer of the Custodian, and shall address each
of the Servicing Criteria specified on a certification substantially in the
form of Exhibit 9 hereto. The Custodian shall not, without the prior written
consent of the Purchaser and the Master Servicer, cease to perform any of the
Servicing Criteria specified on such certification; and
(B) deliver to the Purchaser and the Master Servicer a report
of a registered public accounting firm reasonably acceptable to the Purchaser
and the Master Servicer that attests to, and reports on, the assessment of
compliance made by the Custodian and delivered pursuant to the preceding
paragraph. Such attestation shall be in accordance with Rules 1-02(a)(3) and
2-02(g) of Regulation S-X under the Securities Act and the Exchange Act.
(d) Indemnification
(A) The Custodian shall indemnify the Purchaser, each
affiliate of the Purchaser, and each of the following parties participating in
a Securitization Transaction: each sponsor and issuing entity; each Person
(including, but not limited to, any Master Servicer if applicable) responsible
for the preparation, execution or filing of any report required to be filed
with the Commission with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction; each
broker dealer acting as underwriter, placement agent or initial purchaser,
each Person who controls any of such parties or the Depositor (within the
meaning of Section 15 of the Securities Act and Section 20 of the Exchange
Act); and the respective present and former directors, officers, employees,
agents and affiliates of each of the foregoing and of the Depositor (each, an
"Indemnified Party"), and shall hold each of them harmless from and against
any claims, losses, damages, penalties, fines, forfeitures, legal fees and
expenses and related costs, judgments, and any other costs, fees and expenses
that any of them may sustain arising out of or based upon:
20
(i) (A) any untrue statement of a material
fact contained or alleged to be contained in any
information, report, certification, data,
accountants' attestation or other material provided
under this Section 33 by or on behalf of the
Custodian, or provided under this Section 33 by or
on behalf of any Subservicer or Subcontractor
(collectively, the "Custodian Information"), or (B)
the omission or alleged omission to state in the
Custodian Information a material fact required to
be stated in the Custodian Information or necessary
in order to make the statements therein, in the
light of the circumstances under which they were
made, not misleading, or;
(ii) any breach by the Custodian of its
obligations under this Section 33, including
particularly any failure by the Custodian, any
Subservicer or any Subcontractor to deliver any
information, report, certification, accountants'
letter or other material when and as required under
this Section 33, including any failure by the
Custodian to identify any Subcontractor
"participating in the servicing function" within
the meaning of Item 1122 of Regulation AB;
(iii) the negligence, bad faith or willful
misconduct of the Custodian in connection with its
performance under this Section 33.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Custodian agrees
that it shall contribute to the amount paid or payable by such Indemnified
Party as a result of any claims, losses, damages or liabilities incurred by
such Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Custodian on
the other.
In the case of any failure of performance described in clause (d)(ii)
of this Section, the Custodian shall promptly reimburse the Purchaser, any
Depositor, as applicable, and each Person responsible for the preparation,
execution or filing of any report required to be filed with the Commission
with respect to such Securitization Transaction, or for execution of a
certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction, for all costs reasonably
incurred by each such party in order to obtain the information, report,
certification, accountants' letter or other material not delivered as required
by the Custodian, any Subservicer, or any Subcontractor.
This indemnification shall survive the termination of this Agreement
or the termination of any party to this Agreement.
[SIGNATURE PAGE FOLLOWS]
21
IN WITNESS WHEREOF, the parties hereto have caused their names to be
duly signed hereto by their respective officers thereunto duly authorized, all
as of the date first above written.
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.,
as Purchaser
By: /s/ Xxxxxxx Xxx
-------------------------------------------
Name: Xxxxxxx Xxx
Title: XX
XXXXXX XXXXXXX CREDIT CORPORATION, as Seller
and Servicer
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Sr. V.P.
LASALLE BANK NATIONAL ASSOCIATION, as Trustee
of Xxxxxx Xxxxxxx Mortgage Loan Trust 2006-7
By: /s/ Xxxxxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxxxxxx Xxxxx
Title: Asst. X.X.
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Master Servicer and Securities Administrator
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxxx Xxxxx
Title: XX
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Custodian
By: /s/ Patrick Garrien
-------------------------------------------
Name: Patrick Garrien
Title: V.P.
EXHIBIT 1
---------
REVIEW PROCEDURES
This Exhibit 1 sets forth the Custodian's review procedures for each
item listed below delivered by the Purchaser or its designee pursuant to the
Custodial Agreement, dated as of May 1, 2006 (the "Agreement"), among Xxxxxx
Xxxxxxx Mortgage Capital Inc., Xxxxxx Xxxxxxx Credit Corporation, LaSalle Bank
National Association and Xxxxx Fargo Bank, National Association, as Master
Servicer, Securities Administrator and Custodian to which this Exhibit is
attached. Capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Agreement.
a) the Mortgage Note and the Mortgage each appear to bear an
original signature or signatures purporting to be the signature
or signatures of the Person or Persons named as the maker and
Mortgagor or grantor, or in the case of copies of the Mortgage
permitted under Section 2 of the Agreement, that such copies
bear a reproduction of such signature;
b) amount of the Mortgage Note is the same as the amount specified
on the related Mortgage;
c) the mortgagee is the same as the payee on the Mortgage Note;
d) the Mortgage contains a legal description other than address,
city and state;
e) the notary section (acknowledgment) is present and attached to
the related Mortgage and is signed;
f) neither the original Mortgage Note, nor the copy of the
Mortgage delivered pursuant to the Agreement, nor the original
Assignment of Mortgage contain any notations on their face
which appear in the good faith judgment of the Custodian to
evidence any claims, liens, security interests, encumbrances or
restrictions on transfer;
g) the Mortgage Note is endorsed in blank by the named holder or
payee thereof;
h) each original Assignment of Mortgage (or, in lieu of an
original signature page of the Assignment of Mortgage, a
facsimile or a Portable Document Format (PDF) copy thereof) and
any intervening assignment of mortgage, if applicable, appears
to bear the original, or copy, as applicable, signature of the
named mortgagee or beneficiary including any subsequent
assignors, as applicable, or in the case of copies permitted
under Section 2, that such copies appear to bear a reproduction
of such signature or signatures and the officer's certificate
of the Seller, or certification of the title company, escrow
agent or closing attorney accompanying such copies appears to
bear an original signature or a reproduction of such signature,
and the intervening assignments of mortgage evidence a complete
chain of assignment and transfer of the related Mortgage from
the originating Person to the Seller (or, in the case of a MERS
Designated Mortgage Loan, MERS);
Exh. 1-1
i) the date of each intervening assignment is on or after the date
of the related Mortgage and/or the immediately preceding
assignment, as the case may be;
j) the notary section (acknowledgment) is present and attached to
each intervening assignment and is signed;
k) based upon a review of the Mortgage Note (and, in the case of a
MERS Designated Mortgage Loan and item (48), the MERS Report),
items (1), (2), (3), (11), (15), (19), (20), (28), (33), (40),
(41) and (48) as set forth in the Mortgage Loan Schedule
delivered by the Seller to the Custodian are correct;
l) with respect to each MERS Designated Mortgage Loan, the
Purchaser is named as the "Investor" on the MERS System
(provided the Custodian shall only be required to verify item
(48) in clause k and the information in this clause 1 in
connection with the initial Certification regarding each
Mortgage Loan Package);
m) with respect to each Mortgage Loan that is not a Co-op Loan,
the original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified
true copy of the related policy binder or commitment for title
certified to be true and complete by the title insurance
company contains the correct Mortgagor(s) name and a legal
description, and the insured amount is no less than the amount
specified on the related Mortgage; and
n) with respect to each Co-op Loan, the Custodian has received (i)
a copy of the Co-op Lease and the assignment of such Co-op
Lease, with all intervening assignments showing a complete
chain of title and an assignment thereof by Seller; (ii) the
stock certificate together with an undated stock power relating
to such stock certificate executed in blank; and (iii) if
applicable, a filed UCC-3 Assignment of the subject security
interest showing a complete chain of title, together with an
executed UCC-3 Assignment of such security interest by the
Seller.
Exh. 1-2
EXHIBIT 2-A
-----------
FORM OF INITIAL CUSTODIAN CERTIFICATION
May 31, 2006
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services MSM 2006-7
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-7, Mortgage Pass-Through Certificates, Series 2006-7
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, (a) all documents required to be delivered to the Custodian pursuant
to Sections 2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of
the UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its possession,
(b) such documents have been reviewed by it and have not been mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its review and examination and only
as to the foregoing documents, such documents appear regular on their face and
related to such Mortgage Loan and (d) each Mortgage Note has been endorsed and
each assignment of Mortgage has been delivered as provided in Section 2.01 of
the Pooling and Servicing Agreement. The Custodian has made no independent
examination of any documents contained in each Mortgage File beyond the review
specifically mentioned above. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents delivered in accordance with Section 2.01 of the Pooling and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage
Loan Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
Xxx. 0-X-0
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Xxx. 0-X-0
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Custodian
By: ____________________________________
Authorized Representative
Xxx. 0-X-0
EXHIBIT 2-B
-----------
FORM OF FINAL CUSTODIAN CERTIFICATION
---------------------------
[90 days from Closing Date]
Xxxxxx Xxxxxxx Capital I Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services MSM 2006-7
Re: Pooling and Servicing Agreement ("Pooling and Servicing
Agreement") relating to Xxxxxx Xxxxxxx Mortgage Loan Trust
2006-7, Mortgage Pass-Through Certificates, Series 2006-7
Ladies and Gentlemen:
In accordance with and subject to the provisions of Section 2.02 of
the Pooling and Servicing Agreement, the undersigned, as Custodian, hereby
certifies that, except for the exceptions noted on the schedule attached
hereto, (a) all documents required to be delivered to the Custodian pursuant
to Sections 2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of
the UCC-1), (g) and (h), and if delivered to it, the documents identified in
Section 2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the
UCC-3) and (f) of the Pooling and Servicing Agreement are in its possession,
(b) such documents have been reviewed by it and have not been mutilated,
damaged, defaced, torn or otherwise physically altered, and such documents
relate to such Mortgage Loan, (c) based on its examination and only as to the
foregoing documents, these documents with respect to each Mortgage Loan
accurately reflect the information contained in the Mortgage Note and Mortgage
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage
has been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned
above. The Custodian makes no representations as to: (i) the validity,
legality, sufficiency, enforceability or genuineness of any of the documents
delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Exh. 2-B-1
Schedule, or (ii) the collectibility, insurability, effectiveness or
suitability of any such Mortgage Loan.
The Custodian acknowledges receipt of notice that the Depositor has
granted to the Trustee for the benefit of the Certificateholders a security
interest in all of the Depositor's right, title and interest in and to the
Mortgage Loans.
Capitalized terms used herein without definition shall have the
meaning assigned to them in the Pooling and Servicing Agreement.
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Custodian
By: ______________________________________
Authorized Representative
Exh. 2-B-2
EXHIBIT 3
---------
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
--------------------------------------------
To: [Address]
Re: The Custodial Agreement, dated as of May 1, 2006, among
Xxxxxx Xxxxxxx Mortgage Capital Inc. as the Purchaser,
Xxxxxx Xxxxxxx Credit Corporation, as the Seller and the
Servicer, LaSalle Bank National Association, as the
Trustee, Xxxxx Fargo Bank, National Association, as the
Master Servicer and Securities Administrator and Xxxxx
Fargo Bank, National Association as the Custodian.
In connection with the administration of the Mortgage Loans held by
you as the Custodian on behalf of the Purchaser, we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name Address & Zip Code:
Mortgage Loan Number:
Send Custodial File to:
Reason for Requesting Documents (check one)
___1. Mortgage Loan Paid in Full. (The Purchaser or its designee
hereby certifies that all amounts paid in connection
therewith have been received.)
___2. Mortgage Loan Repurchase Pursuant to Section 9 of the
related Purchase Agreement. (The Purchaser or its designee
hereby certifies that the repurchase price paid in
connection therewith has been received.)
___3. Mortgage Loan Liquidated By ____________ (The Purchaser or
its designee hereby certifies that all proceeds of
foreclosure, insurance, or other disposition have been
finally received and credited.)
___4. Mortgage Loan in Foreclosure
Exh. 3-1
___5. Other (explain) _______________________
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our
previous request and receipt on file with you, as well as any additional
documents in your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of the above
documents to you as the Custodian, please acknowledge your receipt by signing
in the space indicated below, and returning this form.
Capitalized terms used but not defined herein shall have the
respective meanings assigned to them in the above-referenced Custodial
Agreement.
[TRUSTEE OR MASTER SERVICER]
By: _________________________________________
Name:
Title:
Date:
Exh. 3-2
EXHIBIT 4
---------
FORM OF OPINION OF COUNSEL TO THE CUSTODIAN
-------------------------------------------
(Date)
Xxxxxx Xxxxxxx Mortgage Capital Inc.
1221 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Global Securities and Trust Services MSM 2006-7
Ladies and Gentlemen:
We have acted as counsel to Xxxxx Fargo Bank, National Association
(the "Custodian") in connection with the execution and delivery of that
certain Custodial Agreement, dated as of May 1, 2006 (the "Agreement"), among
you, as the Purchaser, Xxxxxx Xxxxxxx Credit Corporation, as the Seller and
the Servicer, LaSalle Bank National Association, as the Trustee, Xxxxx Fargo
Bank, National Association, as the Master Servicer and Securities
Administrator and Xxxxx Fargo Bank, National Association as the Custodian with
respect to certain conventional residential Mortgage Loans.
We have reviewed the Agreement and such other matters as we have
deemed appropriate in order to deliver the opinions contained herein.
In rendering the opinions expressed below, we have assumed, without
any independent investigation or verification of any kind, that you are duly
organized, validly existing and in good standing under the laws of the
jurisdiction of your incorporation and have full power and authority to
execute, deliver and perform the Agreement, and that the execution, delivery
and performance of the Agreement by you has been duly authorized by all
requisite corporate action and has been duly executed and delivered by you.
Based upon the foregoing, it is our opinion that:
1. The Custodian is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States of
America with full right, power and authority to enter into, execute and
deliver the Agreement. The Custodian is eligible to act as custodian under the
terms of the Agreement.
2. The Agreement has been duly authorized, executed and delivered by
the Custodian and constitutes the legal, valid and binding agreement of and is
enforceable against the Custodian in accordance with its terms, subject to
bankruptcy laws and other similar laws of
Exh. 4-1
general application affecting rights of creditors and subject to the
application of the rules of equity, including those respecting the
availability of specific performance.
[We are members of the Bar of the State of ___________. We do not
express herein any opinion as to matters governed by any law other than the
law of the State of _________, the laws of the State of
_____________applicable to ____________corporations and the federal law of the
United States of America.]
This opinion is given to you for your sole benefit, and no other
person or entity is entitled to rely hereon, except that the purchaser or
purchasers to which you initially and directly resell the Mortgage Loans may
rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
Exh. 4-2
EXHIBIT 5
---------
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
-------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
Exh. 5-1
EXHIBIT 6
---------
AUTHORIZED REPRESENTATIVES OF THE PURCHASER
-------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
____________________________________ ______________________________________
Exh. 6-1
EXHIBIT 7
---------
FORM OF LOST NOTE AFFIDAVIT
---------------------------
I, as _______________________ (title) of Xxxxx Fargo Bank, National
Association (the "Custodian"), am authorized to make this Lost Note Affidavit
on behalf of Xxxxx Fargo Bank, National Association. In connection with the
administration of the Mortgage Loans held by Xxxxx Fargo Bank, National
Association as Custodian on behalf of _______________ (the "Investor"),
______________(hereinafter called "Deponent"), being duly sworn, deposes and
says that:
1. Custodian's address is:
[CUSTODIAN'S Address]
2. Custodian previously delivered to the Investor a signed
Certification with respect to the Mortgage Note referred to below;
3. Such Mortgage Note was endorsed or sold to the Investor by
________________ pursuant to the terms and provisions of a
______________Agreement dated and effective as of ___________ ______, _______;
4. Such Mortgage Note is not outstanding pursuant to a Request for
Release of Documents;
5. Such Mortgage Note (hereinafter called the "Original") has been
lost;
6. Deponent has made or has caused to be made diligent search for
Original and has been unable to find or recover same;
7. The Custodian was the Custodian of the Original at the time of
loss; and
8. Deponent agrees that, if the Original should ever come into
Custodian's possession, custody or power, Custodian will immediately and
without consideration surrender Original to the Investor.
9. Attached hereto is a true and correct copy of (i) the Mortgage
Note, endorsed in blank by the Mortgagee, and (ii) the Mortgage or Deed of
Trust [strike one] with evidence of recording thereon which secures the Note.
10. Deponent hereby agrees that the Custodian (a) shall indemnify and
hold harmless [INVESTOR], its successors, and assigns, against any loss,
liability or damage, including reasonable attorney's fees, resulting from the
unavailability of the Mortgage Notes, including but not limited to any loss,
liability or damage arising from (i) any false statement contained in this
Lost Note Affidavit, (ii) any claim of any party that it has already purchased
a mortgage loan evidenced by the lost Mortgage Note or any interest in such
mortgage loan, (iii) any claim of any borrower with respect to the existence
of terms of a Mortgage Loan evidenced by the lost Mortgage Note, (iv) the
issuance of new instrument in lieu thereof and (v) any claim
Exh. 7-1
whether or not based upon or arising from honoring or refusing to honor the
Original when presented by anyone (items (i) through (iv) above are
hereinafter referred to as the "Losses") and (b) if required by any Rating
Agency in connection with placing such lost Mortgage Note into a
securitization transaction, shall obtain a surety bond from an insurer
acceptable to the applicable Rating Agency in an amount acceptable to such
Rating Agency to cover any Losses with respect to such lost Mortgage Note.
11. Capitalized terms used but not defined herein shall have the
respective meanings given them in the Custodial Agreement, dated as of August
28, 2005, between Xxxxxx Xxxxxxx Credit Corporation and Xxxxx Fargo Bank,
National Association.
12. This Lost Note Affidavit is intended to be relied on by the
Investor, its successors, and assigns and _________________ represents and
warrants that it has the authority to perform its obligations under this Lost
Note Affidavit.
EXECUTED THIS____day of_________,
______, on behalf of the Custodian by:
___________________________________________
Signature
___________________________________________
Typed Name & Title
On this ________day of _____________________, ________, before me
appeared _______________________________________________________, to me
personally known, who being duly sworn did say that she/he is the
_________________________________ of _________________, and that said Lost
Note Affidavit was signed and sealed on behalf of such corporation and said
_______________________acknowledged this instrument to be the free act and
deed of said corporation.
____________________________
Notary Public in and for the
State of ___________________
My Commission expires: _______________
Exh. 7-2
EXHIBIT 8
---------
MORTGAGE LOAN SCHEDULE
----------------------
(attached to the PSA)
Xxx. 0-0
XXXXXXX 0
XXXXXXXXX XXXXXXXX TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Custodian shall address,
at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
------------------------------------------------------------------------------------------ ----------------------
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
General Servicing Considerations
-------------------- ----------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
accordance with the transaction agreements.
-------------------- ----------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
such servicing activities.
-------------------- ----------------------
1122(d)(1)(iii) Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
maintained.
-------------------- ----------------------
1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount of
coverage required by and otherwise in accordance with the
terms of the transaction agreements.
-------------------- ----------------------
Cash Collection and Administration
-------------------- ----------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days specified
in the transaction agreements.
-------------------- ----------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
personnel.
-------------------- ----------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
approved as specified in the transaction agreements.
-------------------- ----------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
transaction agreements.
-------------------- ----------------------
1122(d)(2)(v) Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange Act.
-------------------- ----------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent
unauthorized access.
-------------------- ----------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
agreements.
-------------------- ----------------------
Exh. 7-2
------------------------------------------------------------------------------------------ ----------------------
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
Investor Remittances and Reporting
-------------------- ----------------------
1122(d)(3)(i) Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth
in the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans
serviced by the Servicer.
-------------------- ----------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
other terms set forth in the transaction agreements.
-------------------- ----------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction agreements.
1122(d)(3)(iii)
-------------------- ----------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
custodial bank statements.
-------------------- ----------------------
Pool Asset Administration
-------------------- ----------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as X
required by the transaction agreements or related
mortgage loan documents.
-------------------- ----------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as X
required by the transaction agreements
-------------------- ----------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
agreements.
-------------------- ----------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
are posted to the Servicer's obligor records maintained
no more than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related
mortgage loan documents.
-------------------- ----------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
unpaid principal balance.
-------------------- ----------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
and related pool asset documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
transaction agreements.
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1122(d)(4)(viii) Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
the related mortgage loan documents.
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Exh. 7-3
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
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Reference Criteria
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified
in the transaction agreements; (B) interest on such funds
is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and
(C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage
loans, or such other number of days specified in the
transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such
other number of days specified in the transaction
agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless
the late payment was due to the obligor's error or
omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the
transaction agreements.
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1122(d)(4)(xv) Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
AB, is maintained as set forth in the transaction agreements.
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Exh. 7-4
