Exhibit 99.6
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CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 2007-B
Issuer
COUNTRYWIDE HOME LOANS, INC.
Master Servicer
THE BANK OF NEW YORK.
Indenture Trustee
TREASURY BANK, A DIVISION OF COUNTRYWIDE BANK,
F.S.B.
Custodian
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CUSTODIAL AGREEMENT
Dated as of March 30, 2007
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Table of Contents
Page
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Section 1. Defined Terms and Rules of Construction.......................................1
Section 2. Acknowledgment of Receipt and Certification; Appointment as Custodian.........2
Section 3. Maintenance of Office.........................................................4
Section 4. Duties of Custodian...........................................................4
Section 5. Access to Records.............................................................5
Section 6. Instructions; Authority to Act................................................5
Section 7. Advice of Counsel.............................................................5
Section 8. Representations and Warranties................................................5
Section 9. Effective Period, Termination, and Amendment, and Interpretive and Additional
Provisions....................................................................6
Section 10. Limitation of Liability.......................................................6
Section 11. Governing Law.................................................................8
Section 12. Amendment.....................................................................8
Section 13. Notices.......................................................................8
Section 14. Binding Effect................................................................8
Section 15. Counterparts..................................................................9
Section 16. Severability of Provisions....................................................9
Section 17. Third Party Beneficiary.......................................................9
Section 18. Merger of Custodian...........................................................9
Section 19. Indemnification...............................................................9
Section 20. Dispute Resolution, Arbitration..............................................10
Section 21. Limitation of Liability......................................................10
EXHIBIT A Form of Custodian's Initial Certification
EXHIBIT B Form of Custodian's Delay Delivery Certification
EXHIBIT C Form of Custodian's Final Certification
EXHIBIT D Form of Custodian's Further Final Certification
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CUSTODIAL AGREEMENT
This CUSTODIAL AGREEMENT, dated as of March 30, 2007 (this
"Agreement"), among CWHEQ, Inc. (the "Depositor"), COUNTRYWIDE HOME LOANS,
INC., as master servicer (the "Master Servicer"), CWHEQ REVOLVING HOME EQUITY
LOAN TRUST, Series 2007-B (the "Issuer"), and TREASURY BANK, A DIVISION OF
COUNTRYWIDE BANK, F.S.B., as agent, custodian, and bailee for the Owner
Trustee as owner and the Indenture Trustee as secured party (when acting for
the Issuer, the "Trust Custodian," and when acting for the Indenture Trustee,
the "Indenture Custodian," and when referring to both capacities, the
"Custodian"), and THE BANK OF NEW YORK, as indenture trustee (in that capacity
the "Indenture Trustee"),
WITNESSETH:
WHEREAS, the Depositor will sell all of its interest in the Mortgage
Loans to the Issuer pursuant to the Sale and Servicing Agreement; and
WHEREAS, the Issuer will Grant a Security Interest to the Indenture
Trustee for the benefit of the Noteholders and the Credit Enhancer in all of
the Issuer's interest in the Collateral; and
WHEREAS, the Issuer wants to hold its assets through a custodian
acting as its agent and bailee under a custodial agreement, and authorize the
custodian to deliver the Collateral to the Indenture Trustee; and
WHEREAS, the Indenture Trustee wants to hold the Collateral through a
custodian acting as its agent and bailee under a custodial agreement in
connection with the Issuer's delivery of the Collateral to the Indenture
Trustee;
NOW, THEREFORE, the parties agree as follows.
Section 1. Defined Terms and Rules of Construction.
Capitalized terms used but not otherwise defined in this Agreement
have the meanings given to them in the Master Glossary of Defined Terms. In
addition, Section 1.04 (Rules of Construction) of the Indenture is
incorporated by reference with appropriate substitution of this Agreement for
references in that Section to the Indenture so that the language of that
Section will read appropriately as applying to this Agreement.
Section 2. Acknowledgment of Receipt and Certification;
Appointment as Custodian.
(a) Appointment as Custodian; Acknowledgment of Receipt.
The Issuer appoints the Trust Custodian to act as its agent,
custodian, and bailee to accept delivery of the items transferred to it under
the Sale and Servicing Agreement and to hold them for the Issuer, and deliver
any of them to the Indenture Trustee as called for under the Indenture. The
Indenture Trustee appoints the Indenture Custodian to act as its agent,
custodian, and bailee to maintain custody of the Mortgage Files for the
Indenture Trustee for the benefit of the Noteholders and the Credit Enhancer.
Treasury Bank, a division of Countrywide Bank, F.S.B. accepts both of these
appointments. The Trust Custodian will maintain custody of the items
transferred to it under the Sale and Servicing Agreement that are not
delivered to the Indenture Trustee subject to instructions from the Issuer.
The Indenture Custodian will maintain continuous custody of the Mortgage Files
at its office identified in Section 3 until (i) the Indenture Trustee delivers
to the Indenture Custodian an Officer's Certificate to the effect that the
conditions for the release of Collateral have been satisfied or (ii) the
conditions specified in Section 4(b) for the release of the Mortgage Files to
the Master Servicer have been met. In performing its duties under this
Agreement, the Custodian agrees to act with the degree of care and skill
consistent with the degree of care and skill that the Custodian exercises with
respect to the loan files relating to similar loans owned, serviced, or held
as custodian by the Custodian, and the Custodian agrees to follow its
customary policies and procedures.
(b) Review and Certification.
In connection with the transfers under Sections 2.01(a) and 2.01(b)
of the Sale and Servicing Agreement by the Depositor, the Depositor is
required to effect certain deliveries to the Issuer and the Indenture Trustee
under Section 2.01(d) of the Sale and Servicing Agreement. The Trust Custodian
shall accept those deliveries for the Issuer, and shall make the deliveries to
the Indenture Trustee required of the Issuer. The Indenture Custodian acting
as custodian for the Indenture Trustee shall accept those deliveries.
On the Closing Date, the Custodian will execute and deliver to the
Depositor, the Master Servicer, the Sponsor, the Indenture Trustee, and the
Credit Enhancer (with a copy to the Issuer) an Initial Certification in the
form of Exhibit A. Based on its review and examination, the Custodian
will acknowledge that the documents identified in the Initial
Certification appear regular on their face (i.e. are not mutilated,
damaged, defaced, torn, or otherwise physically altered) and relate to
each Mortgage Loan. No later than thirty-two days after the Closing
Date, if Mortgage Loans have been delivered after the Closing Date
pursuant to Section 2.01(d) of the Sale and Servicing Agreement, the
Custodian will execute and deliver to the Depositor, the Master
Servicer, the Sponsor, the Indenture Trustee, and the Credit Enhancer
(with a copy to the Issuer) a Delay Delivery Certification in the form
of Exhibit B. Based on its review and examination, the Custodian will
acknowledge that the documents identified in the Delay Delivery
Certification appear regular on their face (i.e. are not mutilated,
damaged,
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defaced, torn, or otherwise physically altered) and relate to each Mortgage
Loan.
Not later than 180 days after the Closing Date, the Custodian will
deliver to the Depositor, the Master Servicer, the Sponsor, the Indenture
Trustee, and the Credit Enhancer (with a copy to the Issuer) a Final
Certification in the form of Exhibit C, noting any applicable exceptions. For
the purpose of the Final Certification, the title policy required for the
Mortgage File is any of the final original title policy, a signed binder or
commitment for a title policy, or a preliminary title report (in those states
in which preliminary title reports are the customary form of title policy
commitment). For any Mortgage File whose Final Certification is based on a
signed binder or commitment for a title policy or a preliminary title report
(in those states in which preliminary title reports are the customary form of
title policy commitment), the Custodian will deliver to the Depositor, the
Master Servicer, the Sponsor, the Indenture Trustee, and the Credit Enhancer
(with a copy to the Issuer), not later than the one year anniversary of the
Closing Date, a further Final Certification in the form of Exhibit D, noting
any applicable exceptions. For the purpose of this further Final
Certification, the title policy required for the Mortgage File must be the
final original title policy.
If, in the course of its review in connection with the Final
Certification, the Custodian finds any document constituting a part of a
Mortgage File that does not meet the requirements of Section 2.02 of the Sale
and Servicing Agreement, the Custodian shall list the defect as an exception
in the Final Certification.
The Custodian is not obligated to examine the documents delivered to
it to determine that they are genuine, enforceable, or appropriate for the
represented purpose, or that they have actually been recorded in the real
estate records, or that they are other than what they purport to be on their
face.
In reviewing any Mortgage File pursuant to this Section, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
The Sponsor will deliver and the Indenture Custodian will maintain
continuous custody at its office identified in Section 3 of the documents
required to be held by the Indenture Trustee in accordance with Section 2.01
of the Sale and Servicing Agreement with respect to any Eligible Substitute
Mortgage Loans.
The Master Servicer shall promptly deliver to the Indenture
Custodian, and the Indenture Custodian will maintain continuous custody at its
office identified in Section
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3 of the originals of any other documents constituting the Mortgage File that
come into the possession of the Master Servicer from time to time.
Section 3. Maintenance of Office.
The Custodian agrees to maintain the items for which it acts as Trust
Custodian or Indenture Custodian at the Indenture Custodian's facilities.
Section 4. Duties of Custodian.
(a) Safekeeping. The Indenture Custodian shall (i) segregate the
Mortgage Files from all other documents in the Indenture Custodian's
possession; (ii) identify the Mortgage Files as being held, and hold the
Mortgage Files, for the Indenture Trustee as secured party for the benefit of
all present and future Noteholders and the Credit Enhancer; (iii) maintain at
all times a current inventory of the Mortgage Files; and (iv) secure the
Mortgage Files in fire resistant facilities and conduct periodic physical
inspections of them in accordance with customary standards for custody of this
type. The Indenture Custodian will promptly report to the Issuer and the
Indenture Trustee any failure on its part to hold the Mortgage Files as
provided in this Agreement and promptly take appropriate action to remedy the
failure.
(b) Stamping Trigger Event. If a Stamping Trigger Event has occurred
in accordance with Section 2.02(e) of the Sale and Servicing Agreement and the
Credit Enhancer so instructs the Custodian in writing, the Custodian, within
30 days of such written instruction by the Credit Enhancer, will stamp on the
blank endorsement on each loan agreement the following: "CWHEQ Revolving Home
Equity Loan Trust, Series 0000-X, Xxx Xxxx xx Xxx Xxxx, as Indenture Trustee."
On the earlier of the completion of the stamping and 60 days after the receipt
by the Custodian of the notice mentioned above, the Credit Enhancer shall have
the right to inspect the loan agreements upon 5 day's written notice to the
Custodian, the Indenture Trustee and the Sponsor. If the Custodian fails to
stamp the loan agreements in accordance with the requirements of this Section
4(b), the Custodian will make the Mortgage Loans available for stamping by the
Credit Enhancer or its agent under the supervision (but not the direction) of
the Custodian. All costs in connection with any stamping in accordance with
this Section 4(b) shall be at the sole expense of the Credit Enhancer and
shall not be charged to the Sponsor, the Trust, or the Custodian. The fees for
the stamping will be mutually agreed between the Custodian and the Credit
Enhancer prior to stamping the loan agreements. If a Mortgage Loan is released
from the lien of the Indenture in accordance with the terms thereof the
stamping shall be removed from the related loan agreement at the sole expense
of the Credit Enhancer.
(c) Release of Documents. On receipt by the Indenture Custodian of
the certification of the Master Servicer in physical or electronic form,
substantially in the form of Exhibit D to the Sale and Servicing Agreement,
the Indenture Custodian shall release to the Master Servicer the related
Mortgage Files for the Mortgage Loan covered by the certification. The
certification may be delivered to the Indenture Custodian in a mutually agreed
electronic format, and to the extent the request originates on its face
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from a servicing officer, need not be manually signed.
Section 5. Access to Records.
The Custodian shall permit the Indenture Trustee, the Issuer, the
Master Servicer, the Credit Enhancer, or their respective duly authorized
officers, attorneys, or auditors, and the supervisory agents and examiners of
each of them, to inspect the items delivered to it under this Agreement and
the books and records maintained by the Custodian pursuant to this Agreement,
without charge but only after not less than two Business Days' prior notice
and during normal business hours at the offices of the Custodian.
Section 6. Instructions; Authority to Act.
The Indenture Custodian may follow any instructions with respect to
the Collateral received in the form of an Officer's Certificate of the
Indenture Trustee. The instructions may be general or specific in terms. An
executed incumbency certificate of the Indenture Trustee certifying the
authority of certain officers to take specified actions may be accepted by the
Indenture Custodian as conclusive evidence of the authority of the officers to
act and may be considered in full force until receipt of written notice to the
contrary by the Indenture Custodian from the Indenture Trustee.
The Trust Custodian may follow any instructions with respect to any
items held exclusively for the Issuer received in the form of an Officer's
Certificate of the Issuer. The instructions may be general or specific in
terms. An executed incumbency certificate of the Issuer certifying the
authority of certain officers to take specified actions may be accepted by the
Trust Custodian as conclusive evidence of the authority of the officers to act
and may be considered in full force until receipt of written notice to the
contrary by the Trust Custodian from the Issuer.
Section 7. Advice of Counsel.
The Custodian may rely and act on the advice of counsel, including
in-house counsel, with respect to its performance under this Agreement as
Custodian and shall not be liable for any action reasonably taken pursuant to
advice of counsel.
Section 8. Representations and Warranties.
The Custodian represents and warrants that on the Closing Date:
(a) it is a national association duly organized, validly existing,
and in good standing under the laws of its place of organization;
(b) it has full power and authority to execute, deliver, and perform
this Agreement, and has taken all necessary action to authorize the execution,
delivery, and performance by it of this Agreement;
(c) the consummation of the transactions contemplated by this
Indenture and the fulfillment of its terms do not conflict with, result in any
breach of, or constitute (with or without notice or lapse of time) a default
under, the charter or bylaws of the
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Custodian or any agreement or other instrument to which it is a party or by
which it is bound;
(d) to the Custodian's best knowledge, no proceedings or
investigations concerning the Custodian are pending or threatened before any
court, regulatory body, administrative agency, or other governmental
instrumentality having jurisdiction over it or its properties:
(1) asserting the invalidity of this Agreement,
(2) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or
(3) seeking any determination that might affect its
performance of its obligations under this Agreement or the validity
or enforceability of this Agreement; and
(e) it is acting solely as the agent for the Indenture Trustee.
Section 9. Effective Period, Termination, and Amendment, and
Interpretive and Additional Provisions.
This Agreement shall become effective as of its date and shall
continue in full force until terminated in accordance with its terms. This
Agreement may be terminated by either the Indenture Trustee with the consent
of the Issuer and the Credit Enhancer or by the Custodian in a writing
delivered or mailed, postage prepaid, to the other parties and the Credit
Enhancer. The termination shall take effect no sooner than sixty days after
the date of delivery or mailing. Concurrently with, or as soon as practicable
after, the termination of this Agreement, the Indenture Custodian shall
deliver the Collateral to the Indenture Trustee (or to a person designated by
the Indenture Trustee) anywhere the Indenture Trustee reasonably designates
with the consent of the Credit Enhancer, and the Trust Custodian shall deliver
any items held exclusively for the Issuer to the Issuer (or to a person
designated by the Issuer) anywhere the Issuer reasonably designates with the
consent of the Credit Enhancer.
Section 10. Limitation of Liability.
(a) The Custodian undertakes to perform only the obligations
specified in this Agreement. The Issuer, the Owner Trustee, Master Servicer,
and Indenture Trustee acknowledge that no implied obligations exist under this
Agreement. Neither the Custodian nor any of its affiliates, officers,
directors, employees, or agents shall be liable, directly or indirectly, for
any damages or expenses arising out of the services performed under this
Agreement other than damages that result from their gross negligence, willful
misconduct, or bad faith. The Custodian and its officers, directors,
employees, and agents will not be liable for any consequential, indirect,
punitive, or special damages.
(b) Except as provided in Section 2, the Custodian makes no warranty
or
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representation and has no responsibility for the completeness, validity,
sufficiency, value, genuineness, ownership, or transferability of the Mortgage
Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties under this
Agreement, or in the exercise of its rights, if the Custodian believes that
repayment of the funds or adequate indemnity against the risk or liability is
not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian
may rely on and shall be protected in acting in good faith on any notice or
other communication received by it that it reasonably believes to be genuine
and duly authorized with respect to all matters pertaining to this Agreement
and its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes
no representation or warranty with respect to, the validity, adequacy, or
perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary
notwithstanding, the Custodian shall have no notice of, and shall not be bound
by, any other document or agreement executed or delivered in connection with,
or intended to control any part of, the transactions anticipated by or
referred to in this Agreement unless the Custodian is a signatory party to
that document or agreement. Notwithstanding the foregoing sentence, the
Custodian shall be deemed to have notice of the terms (including definitions
not otherwise set forth in full in this Agreement) of other documents and
agreements executed or delivered in connection with, or intended to control
any part of, the transactions anticipated by or referred to in this Agreement,
to the extent the terms are referenced, or are incorporated by reference, into
this Agreement only as long as the Indenture Trustee has provided a copy of
the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth
in this Agreement or in a written amendment to this Agreement executed by the
parties to this Agreement or their successors and assigns. If any provision of
this Agreement implies or requires that action or forbearance be taken by a
party, but is silent as to which party has the duty to act or refrain from
acting, the parties agree that the Custodian shall not be the party required
to take the action or refrain from acting. In no event shall the Custodian
have any responsibility to ascertain or take action except as expressly
provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty
to qualify to do business in any jurisdiction, other than (i) any jurisdiction
where any Mortgage File is or may be held by the Custodian from time to time
under this Agreement, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure
to qualify could have a material adverse effect on the Custodian or its
property or business or on the ability of the Custodian to perform its duties
under this Agreement.
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(i) The Custodian may execute any of its duties under this Agreement
through any of its agents, attorneys-in-fact, or affiliates. Any agent,
attorney-in-fact, or affiliate of the Custodian (and any affiliate's
directors, officers, agents, and employees) that performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver, and other protective provisions to which the
Custodian is entitled under this Agreement, but the Custodian shall remain
responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Acts beyond its control
include acts of God, strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes, or other disasters.
Section 11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS
THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 12. Amendment.
This agreement may not be amended without the written consent of all
the parties.
Section 13. Notices.
All notices, demands, instructions, consents, and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by first class or express mail
(postage prepaid), national overnight courier service, or by facsimile
transmission or other electronic communication device capable of transmitting
or creating a written record (confirmed by first class mail) and shall be
considered to be given for purposes of this Agreement on the day that the
writing is delivered when personally delivered or sent by facsimile or
overnight courier or three Business Days after it was sent to its intended
recipient if sent by first class mail. Unless otherwise specified in a notice
sent or delivered in accordance with the provisions of this Section, notices,
demands, instructions, consents, and other communications in writing shall be
given to or made on the respective parties at their respective addresses
indicated in the Adoption Annex attached to the Indenture.
Section 14. Binding Effect.
This Agreement shall be binding on and inure to the benefit of the
parties to this Agreement and their respective successors and assigns. Except
as contemplated in this Agreement, none of the parties may assign any of its
rights and obligations under this Agreement or any interest in this Agreement
without the consent of the other parties and the Credit Enhancer. The
Custodian may assign its rights and obligations under this
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Agreement, in whole or in part, to any affiliate with the consent of the Credit
Enhancer. The Custodian agrees to notify the other parties of any assignment.
An affiliate is any entity that directly or indirectly is under common control
with the Custodian, or is under contract to be under common control with the
Custodian, and includes a subsidiary or parent company of the Custodian.
Section 15. Counterparts.
This Agreement may be executed in one or more counterparts and by the
different parties to this Agreement on separate counterparts, each of which,
when so executed, shall be an original and all of which shall constitute one
agreement.
Section 16. Severability of Provisions.
Any provision of this Agreement that is prohibited or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the
extent of the prohibition or unenforceability without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of the provision in any other jurisdiction.
Section 17. Third Party Beneficiary.
The Credit Enhancer is a third party beneficiary of this Agreement.
Section 18. Merger of Custodian.
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 is a party, or any entity
succeeding to the business of the Custodian, shall be the successor of the
Custodian under this Agreement, without the execution or filing of any paper
or any further act on the part of any of the parties to this Agreement,
anything in this Agreement to the contrary notwithstanding.
Section 19. Indemnification.
The Issuer agrees to indemnify the Custodian and its affiliates,
directors, officers, agents, and employees, against any losses, claims,
damages, or liabilities of any kind, including reasonable attorneys' fees,
that may arise against Custodian or its affiliates, directors, officers,
agents, or employees, in any way arising out of this Agreement or any action
taken or not taken by Custodian or its permitted successors and assigns under
this Agreement unless they arise because of the breach by the Custodian of its
obligations under this Agreement, which breach was caused by the gross
negligence, lack of good faith, or willful misconduct on the part of Custodian
or any of its affiliates, directors, officers, agents, or employees.
The Custodian agrees to indemnify the Issuer against any losses,
claims, damages, or liabilities of any kind, including reasonable attorneys'
fees, it suffers arising out of the gross negligence, lack of good faith, or
willful misconduct on the part of Custodian or any of its affiliates,
directors, officers, agents, or employees.
The foregoing indemnifications shall survive any termination or
expiration of this Agreement or the resignation or removal of the Custodian.
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Section 20. Dispute Resolution, Arbitration.
This Agreement evidences a transaction involving interstate commerce.
Any disputes arising from this Agreement shall be decided by binding
arbitration which shall be conducted, at the request of any party, in New
York, New York, before one arbitrator designated by the American Arbitration
Association (the "AAA"), in accordance with the Commercial Arbitration Rules
of the AAA, and to the maximum extent applicable, the United States
Arbitration Act (Title 9 of the United States Code). Notwithstanding anything
in this Agreement to the contrary, any party may proceed to a court of
competent jurisdiction to obtain equitable relief at any time. An arbitrator
shall have no authority to award punitive damages or other damages not
measured by the prevailing party's actual damages. To the maximum extent
practicable, an arbitration proceeding under this Agreement shall be concluded
within 180 days of the filing of the dispute with the AAA. This arbitration
clause shall survive any termination, amendment, or expiration of the
Agreement and if any provision of this arbitration clause is found to be
unenforceable, the remaining parts of the arbitration clause shall not be
affected and shall remain fully enforceable.
Section 21. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a)
this Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as trustee of the Issuer, in the
exercise of the powers and authority conferred and vested in it under the
Trust Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but
is made and intended for the purpose of binding only the Issuer and (c) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligations, representation, warranty or covenant
made or undertaken by the Issuer under this Agreement or the other related
documents.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed by a duly authorized officer as of the day and year first above
written.
CWHEQ, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Executive Vice President
CWHEQ REVOLVING HOME EQUITY LOAN TRUST,
SERIES 2007-B
By: Wilmington Trust Company,
not in its individual capacity but
solely as Owner Trustee
By: /s/ J. Xxxxxxxxxxx Xxxxxx
--------------------------------
Name: J. Xxxxxxxxxxx Xxxxxx
Title: Financial Services Officer
THE BANK OF NEW YORK.,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
TREASURY BANK, A DIVISION OF COUNTRYWIDE
BANK, F.S.B.,
as Custodian for the Indenture Trustee
By: /s/ Xxxxxx Xxxxx
---------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
TREASURY BANK, A DIVISION OF COUNTRYWIDE
BANK, F.S.B.,
as Custodian for the Issuer
By: /s/ Xxxxxx Xxxxx
----------------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
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EXHIBIT A
FORM OF INITIAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Indenture Trustee]
[Credit Enhancer]
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Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 200[o]-[o], as
the Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 200[o]-[o]
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Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and
Servicing Agreement (the "Sale and Servicing Agreement"), the undersigned, as
Indenture Custodian for the Indenture Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule delivered pursuant to
Section 2.01(d) of the Sale and Servicing Agreement (other than any Mortgage
Loan paid in full or any Mortgage Loan listed on the attached Document
Exception Report) it has received, among other things:
A-1
(i) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Sponsor stating that the
original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note; and
(ii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage in blank in recordable
form.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of Countrywide Bank,
F.S.B.,
as Custodian for the Indenture Trustee
By:____________________________
Name:
Title:
cc: [Issuer]
A-2
EXHIBIT B
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Indenture Trustee]
[Credit Enhancer]
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 200[o]-[o], as
the Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 200[o]-[o]
-----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and
Servicing Agreement (the "Sale and Servicing Agreement"), the undersigned, as
Indenture Custodian for the Indenture Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule delivered pursuant to
Section 2.01(d) of the Sale and Servicing Agreement (other than any Mortgage
Loan paid in full or any Mortgage Loan listed on the attached Document
Exception Report) it has received, among other
B-1
things:
(i) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced,
an original lost note affidavit from the Sponsor stating that the
original Mortgage Note was lost, misplaced or destroyed, together
with a copy of the related Mortgage Note; and
(ii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage in blank in recordable
form.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of Countrywide Bank,
F.S.B.,
as Custodian for the Indenture Trustee
By:____________________________
Name:
Title:
cc: [Issuer]
B-2
EXHIBIT C
FORM OF FINAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Indenture Trustee]
[Credit Enhancer]
---------------------
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 200[o]-[o], as
the Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 200[o]-[o]
-----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and
Servicing Agreement (the "Sale and Servicing Agreement"), the undersigned, as
Indenture Custodian for the Indenture Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or listed on the attached
C-1
Document Exception Report) it has received:
(i) the original Mortgage Note endorsed in blank or, if the
original Mortgage Note has been lost or destroyed and not replaced, an
original lost note affidavit from the Sponsor stating that the original
Mortgage Note was lost, misplaced or destroyed, together with a copy of
the related Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R)
System, an original Assignment of Mortgage in blank in recordable form;
(iii) the original recorded Mortgage, noting the presence of the
MIN of the Mortgage Loan and language indicating that the Mortgage Loan
is a MOM Loan if the Mortgage Loan is a MOM Loan, or, if, in connection
with any Mortgage Loan, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or before the Closing Date or
Subsequent Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because such original Mortgage has been lost, an accurate copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Sponsor which may be in
the form of a blanket certificate of the Sponsor covering more than one
Mortgage stating that such original Mortgage has been dispatched to the
appropriate public recording official or (ii) in the case of an original
Mortgage that has been lost, a copy certified by the appropriate county
recording office where such Mortgage is recorded;
(iv)if applicable, the original of each intervening assignment
needed for a complete chain of title for the mortgage from its original
mortgagee or beneficiary to the Trust or in blank (or if the Mortgage
Loan is registered on the MERS(R) System to MERS and noting the presence
of a MIN) with evidence of recording thereon, or, if any such original
intervening assignment has not been returned from the applicable
recording office or has been lost, a true and correct copy thereof,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Sponsor or the Depositor, which
may be a blanket certificate covering more than one intervening
assignment, stating that such original intervening assignment has been
dispatched to the appropriate public recording official for recordation
or (ii) in the case of an original intervening assignment that has been
lost, a copy certified by the appropriate county recording office where
such Mortgage is recorded;
(v) a title policy "(e.g., ALTA, FACT, PIRT, etc.)", a signed
binder or commitment for a title policy, or a preliminary title report
(in those states in which preliminary title reports are the customary
form of title policy commitment) for each Mortgage Loan with a Credit
Limit in excess of $100,000;
(vi)the original of any guaranty executed in connection with the
Mortgage Note;
C-2
(vii) the original of each assumption, modification,
consolidation or substitution agreement, if any, relating to the Mortgage
Loan; and
(viii) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan, and (b) the information set forth in items
(ii), (iii), and (iv), of the itemization of contents of the "Mortgage Loan
Schedule" in the Master Glossary of Defined Terms to the Indenture accurately
reflects information set forth in the Mortgage File, and (c) the information
set forth in item (v) of the itemization of contents of the "Mortgage Loan
Schedule" in the Master Glossary of Defined Terms to the Indenture was
delivered to the Custodian.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of Countrywide Bank,
F.S.B.,
as Custodian for the Indenture Trustee
By: ________________________
Name:
Title:
cc: [Issuer]
C-3
EXHIBIT D
FORM OF FURTHER FINAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Indenture Trustee]
[Credit Enhancer]
---------------------
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 200[o]-[o], as
the Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 200[o]-[o]
-----------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and
Servicing Agreement (the "Sale and Servicing Agreement"), the undersigned, as
Indenture Custodian for the Indenture Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule (other than any
Mortgage Loan paid in full or
D-1
listed on the attached Document Exception Report) it has received:
(i) for each Mortgage Loan with a Credit Limit in excess of
$100,000, a final original title policy "(e.g., ALTA, FACT, PIRT,
etc.)".
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of Countrywide
Bank, F.S.B.,
as Custodian for the Indenture
Trustee
By: ________________________
Name:
Title:
cc: [Issuer]
D-2
