Exhibit 99.5
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EXECUTION COPY
CUSTODIAL AGREEMENT
THE CUSTODIAL AGREEMENT, dated as of July 1, 2006 (the
"Agreement"), among Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Purchaser"),
having an address of 1221 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, The Hemisphere National Bank, having an address at 0000 Xxxxxxxx
Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 ("Hemisphere", a "Servicer" and a
"Seller"), Wachovia Mortgage Corporation, having an address at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000 ("Wachovia", a "Servicer" and a
"Seller"), Xxxxx Fargo Bank, National Association, having an address at 0000
Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000 (in such capacity, the "Master
Servicer" and the "Securities Administrator"), LaSalle Bank National
Association having an address at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000 (the "Trustee") and X.X. Xxxxxx Trust Company,
National Association, having an address at 0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000 (the "Custodian").
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the applicable Sale and Servicing Agreements
referred to below.
WITNESSETH:
WHEREAS, the Purchaser has purchased or agreed to purchase from the
related Seller and the related Seller has sold or agreed to sell to the
Purchaser, certain mortgage loans specified on Exhibit 1 hereto (the "Mortgage
Loans"), pursuant to the terms and conditions of (i) a First Amended and
Restated Mortgage Loan Sale and Servicing Agreement dated December 1, 2005
between Hemisphere and the Purchaser and (ii) a Seller's Purchase, Warranties
and Servicing Agreement, dated as of September 1, 2004 between Wachovia and
the Purchaser, as supplemented by a Regulation AB Compliance Addendum dated as
of April 17, 2006 between Wachovia and the Purchaser (collectively, the "Sale
and Servicing Agreements");
WHEREAS, the Mortgage Loans purchased pursuant to the Sale and
Servicing Agreements will be serviced by the Servicers pursuant to the
applicable Sale and 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 various custody agreements referenced in the Sale and
Servicing Agreements (collectively, the "Underlying Custody Agreements");
WHEREAS, the Mortgage Loans have been transferred to Xxxxxx Xxxxxxx
Capital I Inc. (the "Depositor") pursuant to a series of Assignment,
Assumption and Recognition Agreements, dated July 1, 2006, each among the
related Seller, 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 2006-9AR (the "Trust")
pursuant to the Pooling and
Servicing Agreement dated July 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 Servicers pursuant to the
Sale and Servicing Agreements;
WHEREAS, the Trustee on behalf of 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 Trustee 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. On or prior to July 31, 2006 (the "Closing Date"),
Hemisphere shall deliver and release to the Custodian the documents identified
on Schedule 1-A as being required to be delivered to the Purchaser, pertaining
to the related Mortgage Loans as identified in the related Mortgage Loan
Schedule and Wachovia shall deliver and release to the Custodian the documents
identified on Schedule 1-B, in each case, as being required to be delivered to
the Purchaser, pertaining to the related Mortgage Loans as identified in the
related Mortgage Loan Schedule.
A copy of each Mortgage Loan Schedule is annexed as Exhibit 1 (the
"Mortgage Loan Schedule").
Section 2. From time to time, each Servicer shall forward to the
Custodian additional documents evidencing an assumption or modification of a
Mortgage Loan approved by the Trustee and the Servicer. All Mortgage Loan
documents held by the Custodian as to each Mortgage Loan are referred herein
as the "Custodian's Mortgage File." The Custodian, in its independent
capacity, agrees to act as custodian for the Trustee and any successor to the
Trustee in accordance with the terms and conditions of this Agreement.
Section 3. With respect to the Custodian's Mortgage File delivered
to the Custodian, the Custodian is the exclusive bailee and custodian for the
Trustee, and the Trustee's successor or assigns and shall reflect in its
records the interest of the Trustee therein. The Custodian shall hold the
Custodian's Mortgage Files for the exclusive use and benefit of the Trustee
and, except as otherwise provided herein, shall dispose thereof only in
accordance with either the terms of this Agreement or the written instructions
of the Trustee. The Custodian shall maintain continuous custody of all
Custodian's Mortgage Files received by it in secure and fire resistant
facilities in accordance with customary standards for such custody, and shall
segregate and identify the Mortgage Loan Files by pool on its automated data
system.
In the event that (i) the Purchaser, a Seller, the Master Servicer,
the Trustee, the Securities Administrator or the Custodian shall be served by
a third party with any type of levy, attachment, writ or court order with
respect to the Custodian's Mortgage File or any document included within the
Custodian's Mortgage File or (ii) a third party shall institute any court
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proceeding by which the Custodian's Mortgage File or a document included
within the Custodian's Mortgage File shall be required to be delivered
otherwise than in accordance with the provisions of this Agreement, the party
receiving such notice shall promptly deliver or cause to be delivered to the
other parties to this 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 any portion of the
Custodian's Mortgage File that is 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 the Custodian's Mortgage File as directed by the
Trustee or the Securities Administrator on behalf of the Trustee which shall
give a direction consistent with such determination. All reasonable expenses
and fees (including attorney's fees) of the Custodian incurred as a result of
such proceedings shall be borne by the Trust.
Section 4. On or before July 31, 2006, the Custodian shall deliver
to the Purchaser, the Trustee and the Securities Administrator a Custodial
Receipt in the form annexed hereto as Exhibit 3 (the "Custodial Receipt")
which includes verification that, except as shown on an exceptions list
attached thereto:
(a) all documents required to be delivered to it pursuant to
Section 1 of this Agreement are in the Custodian's possession, provided that
the Custodian shall separately note on the Data Collection Schedule (the "Data
Collection Schedule") any Mortgage Loans with respect to which the original
note is missing and a Lost Note Affidavit and a copy of such note is
delivered; provided, further, that (i) the Custodian shall have no obligation
to verify the receipt of any documents the existence of which was not
delivered or made known to the Custodian as part of the Custodian's Mortgage
File and (ii) the Custodian shall have no obligation to determine whether the
recordation of any document is necessary;
(b) all documents have been examined by the Custodian and appear
regular on their face and relate to the Mortgage Loans;
(c) based only on the Custodian's examination of the foregoing
documents, the information set forth on the Mortgage Loan Schedules
representing each Mortgage Loan accurately reflects the following (within the
tolerances, if any, shown in parentheses):
(1) the Mortgage Loan number,
(2) the first payment date (acceptable if accurate within
30 days),
(3) the maturity date (acceptable if accurate within 30
days),
(4) the original loan amount,
(5) the original interest rate,
(6) the loan type (FHA, VA, etc.),
(7) loan modifications, if any,
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(8) the full name of the borrower(s) (acceptable if first
and/or middle names are missing or initialized (e.g., X.X. Xxxxx
would match Xxxxxxx Xxxxx Xxxxx), acceptable if first names are
shortened or lengthened or nicknames substituted therefor (e.g.,
Xxx for Xxxxxx or Xxxx for Xxxxxxx), acceptable if middle or
maiden names are omitted, acceptable if "Jr.", "Sr.", "II" and
similar designations are omitted, acceptable if discrepancy is a
typographical error),
(9) the property address, including zip code (zip code
acceptable as long as first three digits in zip code match),
(10) the origination date (within 1 month),
(11) the original or current principal and interest payment,
as applicable,
(12) whether the Mortgage Loan is a MERS Mortgage Loan, and
(13) with respect to the adjustable rate Mortgage Loan,
(A) the first Adjustment Date and the Adjustment Date
frequency,
(B) the Gross Margin,
(C) the Maximum Mortgage Interest Rate under the terms of
the Mortgage Note,
(D) the Minimum Mortgage Interest Rate under the terms of
the Mortgage Note,
(E) the Initial Rate Cap and the Periodic Rate Cap,
(F) the first Adjustment Date immediately following the Cut
off Date
(G) the Index, and
(H) the type of adjustable rate mortgage loan (i.e. 3/1,
5/1, 7/1, etc); and
(d) each Mortgage Note has been endorsed and each assignment of
mortgage has been assigned as described in Schedule 1-A and Schedule 1-B
hereto, provided that the Custodian shall have no obligation to confirm that
the assignments are in recordable form.
In making the verification required by this Section 4 (the
"Verified Information"), the Custodian may rely conclusively on the related
Mortgage Loan Schedule provided by the Purchaser to the Custodian and attached
hereto, and the Custodian shall have no obligation to independently verify the
correctness of such Mortgage Loan Schedule. If any discrepancy exists
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between the Verified Information and the related Mortgage Loan Schedule, the
Custodian shall notify the Purchaser, Trustee, Master Servicer, the related
Seller and the related Servicer by attaching a list of such discrepancies to
the Final Certification.
It is understood that before delivering the Custodial Receipt, the
Custodian shall examine the Mortgage Loan Documents to confirm the following
(and shall report any exceptions to these confirmations in the exceptions
report attached to the Custodial Receipt):
(1) each mortgage note, mortgage, guaranty, and deed
of sale bears a signature or signatures that appear to be
original and that purport to be that of the Person or
Persons named as the maker and mortgagor/trustor or, if
photocopies are permitted by this Agreement, that such
copies bear a reproduction of such signature or signatures;
(2) the principal amount of the indebtedness secured
by the mortgage is identical to the original principal
amount of the note;
(3) the interest rate shown on the note is identical
to the interest rate shown on the applicable Mortgage Loan
Schedule;
(4) the assignment of the mortgage from the Seller is
in the form required pursuant to Section l hereof, and bears
the signature of the Seller, that appears to be an original
and any other necessary party or, if photocopies are
permitted by this Agreement, such copies bear a reproduction
of such signature or signatures;
(5) if intervening assignments are included in the
Custodian's Mortgage File, each such intervening assignment
bears the signature of the mortgagee and/or the assignor
(and any other necessary party) that appears to be an
original or, if photocopies are permitted by this Agreement,
that such copies bear a reproduction of such signature or
signatures; and
(6) the title insurance policy, certificate of title
or preliminary title report is for an amount not less than
the original principal amount of the note.
Section 5. Prior to October 30, 2006, the Custodian shall deliver
to the Trustee a Final Certification in the form of Exhibit 4 (the "Final
Certification") evidencing the completeness of the Custodian's Mortgage File
for each Mortgage Loan, with any applicable exceptions noted on the Exceptions
Report attached to such Final Certification.
Section 6. No later than the fifth Business Day of each month,
commencing in August 2006, the Custodian shall, upon request, deliver to each
Servicer, and the Trustee in hard copy format (and if requested, in electronic
format), the exceptions list required by Section 4 hereof, updated to remove
exceptions cured since the date on which the Custodial Receipt was
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issued pursuant to Section 4 hereof. In addition, such monthly reports shall
list any document with respect to which the related Seller delivered a copy
certifying that the original had been sent for recording, until such time as
the related Seller delivers to the Custodian the original of such document or
a copy thereof certified by the appropriate public recording office. The Data
Collection Schedule shall not be included unless specifically requested in
advance. Except as specifically provided above, the Custodian shall be under
no duty to review, inspect or examine such documents to determine that any of
them are enforceable or appropriate for their prescribed purpose. During the
life of the Mortgage Loans, in the event the Custodian discovers any defect
with respect to the Custodian's Mortgage Files, the Custodian shall give
written notice of such defect to the Master Servicer, the Trustee, the
Purchaser and the related Seller.
Section 7. The Custodian shall hold in its possession and custody
at X.X. Xxxxxx Trust Company, National Association, 0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, for the Trustee or any assignee of the
Trustee, all of the Custodian's Mortgage Files delivered from time to time by
the Servicers to the Custodian.
Section 8. From time to time and as appropriate for the foreclosure
or servicing of the Mortgage Loans, the Trustee hereby authorizes the
Custodian to release to each Servicer and the Master Servicer, within three
(3) business days of receipt of either (i) a written request and receipt of
the related Servicer in the form attached hereto as Exhibit 5(a) (a "Request
for Release") executed by one of the authorized signatories set forth on
Exhibit 6, as such exhibit may be updated from time to time by the related
Servicer or Master Servicer or (ii) an electronic request through the use of
an electronic file request system mutually acceptable to the Custodian, the
related Servicer or Master Servicer, for the a Custodian's Mortgage File or
for certain documents set forth in such request to the place indicated in any
such written request from the related Servicer or Master Servicer. A list of
authorized signatures for such written requests has been furnished to the
Custodian by the Master Servicer and the related Servicer. All Custodian's
Mortgage Files so released to the Master Servicer or a Servicer shall be held
by the related Servicer or Master Servicer in trust for the benefit of the
Trustee in accordance with the terms of the related Sale and Servicing
Agreement. The related Servicer or Master Servicer shall return to the
Custodian the Custodian's Mortgage File when such Servicer's or Master
Servicer's need therefor in connection with such foreclosure or servicing no
longer exist, unless the Mortgage Loan shall be liquidated or paid in full.
Section 9. The Master Servicer and each Servicer may provide an
electronic transmission of a Request for Release of documents in a form agreed
to in advance of initial transmission between the related Servicer or Master
Servicer and the Custodian containing information readable without
intervention by the Custodian's data processing operations computer hardware
and software staff, and arranged in a record layout to be specified by the
Custodian and agreed to with the related Servicer or Master Servicer (a
"Paperless Release Request"). The Master Servicer and each Servicer agrees to
maintain and control access to electronic signature information and assumes
liability for any unauthorized use thereof. The Master Servicer and each
Servicer also agrees to maintain accurate records of electronic transactions
related to the Custodial Files. The Master Servicer and each Servicer hereby
authorizes the Custodian to automatically append the electronic signature of
an Authorized Representative to the applicable request for release of
documents and agrees and acknowledges that by appending such Authorized
Representatives electronic signature, the Custodian shall be
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entitled to rely thereon. For purposes of this Agreement the term "electronic
signature" is defined as an "electronic identifier intended by the person
using it to have the same force and effect as the use of a manual signature."
The Master Servicer and each Servicer agrees in advance to comply
with all Custodian data encryption, security and record layout standards in
connection with any Paperless Release Request as may be amended from time to
time upon notice from the Custodian to the related Servicer or Master
Servicer. The Custodian reserves the right to restrict or suspend the Master
Servicer's and each Servicer's access to the Custodian's computer systems for
maintenance or repairs or for any other reason in the Custodian's sole
discretion; provided however that the Custodian shall promptly provide the
related Servicer or Master Servicer with notice of such restriction or
suspension.
Notwithstanding the foregoing, the Master Servicer and each
Servicer is authorized to transmit and the Custodian is authorized to accept
signed facsimile copies of Requests for Release.
Section 10. Upon the repurchase of any Mortgage Loan or the payment
or liquidation in full of the Mortgage Loan, and within three (3) Business
Days of receipt by the Custodian of the related Servicer's or Master
Servicer's request for release, receipt and certification either (i) in the
form attached hereto as Exhibit 5(b) executed by one of the authorized
signatories set forth on Exhibit 6 as such exhibit may be updated from time to
time by such Servicer or Master Servicer or (ii) through the use of an
electronic request system mutually acceptable to the Custodian, such Servicer
or Master Servicer and the Securities Administrator (which certification shall
include a statement to the effect that all amounts received in connection with
such repurchase or payment in full or liquidation have been credited to the
Servicer's Custodial Account or the Master Servicer's Collection Account, as
provided in the PSA), the Custodian shall release the related Custodian's
Mortgage File to the related Servicer or Master Servicer.
Section 11. Upon reasonable prior written notice, the Custodian
shall permit the Master Servicer, the Securities Administrator, the Trustee
and their respective agents, and the servicing officers of each Servicer, the
Master Servicer, the Securities Administrator and the Trustee the reasonable
access to its premises during the Custodian's normal business hours to inspect
the Custodian's Mortgage Files and all other documents, records and other
papers in possession or under the control of the Custodian relating to the
Mortgage Loans (or, in the case of the Servicers, the Mortgage Loans serviced
by such Servicer). Each such person shall comply with the Custodian's
reasonable standards and procedures for physical security and personal conduct
while on the Custodian's premises. Any person failing, in the Custodian's sole
but reasonable business judgment, to meet such standards may be removed or
denied access to the premises. The party hereto requesting such examination
shall be responsible for any reasonable expense in connection with such
examination; provided, however, that if such requesting party is the Trustee,
such expense shall be borne by the Trust.
Section 12. The Trustee or the Securities Administrator, with or
without cause, or upon failure by the Custodian to perform or observe any term
of this Agreement, may remove and discharge the Custodian or any successor
Custodian thereafter appointed from the
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performance of its duties under this Agreement upon written notice from the
Trustee or the Securities Administrator, as applicable, to the Custodian or
the successor Custodian; provided that at least sixty (60) days prior written
notice shall be given with respect to a removal or discharge without cause.
Having given notice of such removal, the removing party shall promptly appoint
a successor Custodian to act on its behalf by written instrument, an original
counterpart of which instrument shall be delivered to each Seller, the Master
Servicer, the Securities Administrator and the Trustee and one copy to the
successor Custodian. In the event of any such removal, the Custodian shall
promptly transfer, to the successor Custodian or a subsequent purchaser, as
directed, the Custodian's Mortgage Files being administered under this
Agreement. Such transfer shall be at the Custodian's expense only if the
Custodian is discharged and removed upon a failure by the Custodian to perform
or observe any material terms of this Agreement; otherwise such transfer shall
occur at the expense of the removing party; provided, however, that if such
requesting party is the Trustee, such expense shall be borne by the Trust. In
any event, the Custodian shall be entitled to payment of all outstanding fees
and expenses of the Custodian due the Custodian at the time of such removal by
the removing party. In the event that the Trustee or the Securities
Administrator removes the Custodian without cause, any transfer or set up fees
payable to the successor Custodian will be payable by the removing party;
provided, however, that if such requesting party is the Trustee, such expense
shall be borne by the Trust. In any event, the ongoing fees of any successor
Custodian, as mutually agreed in a separate letter agreement between such
successor and the Securities Administrator, shall be paid by the Securities
Administrator.
Section 13. The following fees and expenses of the Custodian are
the sole obligation of the Securities Administrator:
Function Fee
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Annual Safekeeping Fee $0.20 per file per month
File Release Fee $2.75 per file
In addition, the Purchaser shall pay any fees specified in a fee letter
agreement between the Purchaser and the Custodian dated January 1, 2006.
Section 14. The Custodian shall, at its own expense, maintain at
all times during the existence of this Agreement and keep in full force and
effect, (a) fidelity insurance, (b) errors and omissions insurance and (c) all
risk property 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 and in an amount and with
coverages not less than that required by Xxxxxx Mae. Upon request, the Trustee
will be provided with certificates of insurance, as specified in this
paragraph 14.
Section 15. The Custodian may resign as the Custodian hereunder
upon at least sixty (60) days prior written notice to the Purchaser, the
Master Servicer, the Securities Administrator, each Servicer and the Trustee
whereupon the Custodian shall deliver the Custodian's Mortgage Files to the
Trustee, or a designee of the Trustee, in accordance with directions from the
Trustee. In the event of such resignation, the Securities Administrator shall
pay all outstanding fees (other than expenses directly incurred as a result of
the Custodian's
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resignation) of the Custodian and shall, with the consent of the Trustee,
appoint a successor Custodian. Upon such appointment, the Securities
Administrator shall promptly deliver a written notification of the successor
Custodian to each Servicer, the Master Servicer, the Trustee and the
Purchaser.
Section 16. For the purpose of facilitating the execution of this
Custodial 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 17. Upon the request of the Master Servicer, the Securities
Administrator, each Servicer or the Trustee, at any time, the Custodian shall
provide to such party a list of all the Mortgage Loans owned by the Trustee
for which the Custodian holds a Custodian's Mortgage File pursuant to this
Agreement. Such list may be in the form of a copy of the applicable Mortgage
Loan Schedule with manual deletions to specifically denote any Mortgage Loans
paid off, repurchased or liquidated since the date of this Agreement.
Section 18. The duties and obligations of the Custodian shall only
be such as are expressly set forth in this Agreement or as set forth in a
written amendment to this Agreement executed by the parties hereto or their
successors and assigns. In no event shall the Custodian, its officers,
directors, employees, agents or other representatives be liable for special,
indirect or consequential damages, even if advised of this possibility of the
same.
Section 19. All demands, notices and communications hereunder shall
be in writing and shall be deemed to have been duly given if personally
delivered, delivered by facsimile or mailed by first class mail or overnight
express mail, postage prepaid, to the parties to this agreement at the address
listed on Exhibit 2 or such other address as may hereafter be furnished in
writing to each of the parties to this Agreement. Any such demand, notice or
communication hereunder shall be deemed to have been received on the date
received, if received prior to 4 p.m. standard eastern time, delivered to or
received at the premises of the addressee or received at the facsimile number
of the address, or, if received after 4 p.m. standard eastern time, then on
the next business day.
Section 20. This Agreement shall be construed in accordance with
the laws of the State of New York, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
Section 21. The Custodian shall have no duties or obligation except
those expressly stated in this Agreement, and such duties or obligations shall
be determined solely by the express provisions of this Agreement. The
Custodian, its officers, directors, employees, agents or other representatives
shall not be personally liable for any action taken, suffered or omitted by it
in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon the Custodian by this Agreement or in reliance
upon any written notice, request, consent, certificate, order, affidavit,
letter, telegram or other document reasonably believed by it to be genuine and
to have been signed or sent by the proper party or parties; provided, however,
that the provision of this paragraph shall not be construed to relieve the
Custodian from liability from its own negligent action, its own negligent
failure to act, or its own
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bad faith or willful misconduct or any breach by the Custodian of any of its
obligations hereunder, which breach was due to negligence on the part of the
Custodian. The Custodian will be regarded as making no representations and
having no responsibilities (except as expressly set forth herein) as to the
validity, sufficiency, value, genuineness, ownership or transferability of any
Mortgage Loan, and will not be required to and will not make any
representations as to the validity, value or genuineness of any Mortgage Loan.
The Custodian shall not be obligated to take any legal action hereunder that
might in its judgment involve any expense or liability unless it has been
furnished with reasonable indemnity. The Custodian may rely on and shall be
protected in acting in good faith upon the written instructions of the
Purchaser, each Servicer, the Master Servicer, the Securities Administrator
and the Trustee and such employees and representatives of the Purchaser, each
Servicer, the Master Servicer, the Securities Administrator and the Trustee as
each such party may hereinafter designate in writing. The Custodian may
execute any of the powers hereunder or perform any duties hereunder either
directly or through agents or attorneys, provided, however, that the execution
of such powers by any such agents or attorneys shall not diminish or relieve
the Custodian for responsibility therefor to the same degree as if the
Custodian itself had executed such powers.
Section 22. The Custodian shall be entitled to obtain the advice or
opinion of counsel (which shall be either in house counsel or a nationally
recognized outside counsel) with respect to a matter of law for which the
Custodian has a reasonable question as to the rights and duties relating to
the Custodian hereunder and the Custodian shall have no liability for any
action taken or omitted in conformity with its good faith reliance on such
advice or opinion; provided, however, that the provision of this paragraph
shall not relieve the Custodian from liability from its own negligent
selection of counsel.
Section 23. This Agreement (together with the separate fee
agreement between the Securities Administrator and the Custodian) contains the
entire agreement between the parties relating to the subject matter hereof and
may be amended only by written agreement signed by the parties hereto.
Section 24. [Reserved]
Section 25. The Purchaser agrees to indemnify and hold the
Custodian, its directors, officers, agents, employees, and other
representatives harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by or asserted against it or them in any way arising out of this
Agreement as a result of any act or failure to act, so long as such act or
failure to act by it or them hereunder does not constitute bad faith,
negligence or willful misconduct of the Custodian or any of its agents,
officers, directors or employees or breach by the Custodian of its obligations
hereunder. The foregoing indemnity shall survive the termination of this
Agreement.
Section 26. This Agreement shall inure to the benefit of the
successors and assigns of the parties hereto.
Section 27. Each party agrees to keep confidential the existence of
this Agreement, the identity of the parties hereto, and any other term or
condition of this Agreement
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and the transactions contemplated hereby, and to use such information solely
in order to effectuate the purpose of the Agreement, provided that each party
may provide confidential information to its employees, agents and affiliates
who have a need to know such information in order to effectuate the
transaction, and provided, further that such information is identified as
confidential non public information; provided, however, that the Trustee may
disclose such information to its attorneys, auditors and agents in order to
perform its duties and to any regulatory, administrative or other governmental
authority having jurisdiction over the Trustee. Except as set forth herein, in
the event that either party or any of its employees, agents or affiliates are
requested pursuant to, or required by, applicable law, regulation or legal
process to disclose any non public information, such party will notify the
other promptly prior to any such disclosure so that such party may seek a
protective order or other appropriate remedy or, in such party's sole
discretion, waive compliance with the terms of this Section 27, except as such
notice requirement shall not apply to grand jury subpoenas or when otherwise
prohibited by law. In the event that no such protective order or other remedy
is timely obtained, or that such party waives compliance with the terms of
this Section 27, the party required to disclose such non public information or
its employees, agents or affiliates will furnish only that portion of the non
public information that it is advised by counsel is legally required and will
exercise all reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the non public information.
Section 28. The Custodian (or any successor thereto) shall at all
times (a) be a depository institution or trust company subject to supervision
by federal or state authority, (b) have a combined capital and surplus of at
least $10,000,000, (c) be qualified to do business in any jurisdiction in
which it holds a Custodian's Mortgage File, (d) be qualified to act as a
custodian for Xxxxxx Xxx, the Federal Home Loan Mortgage Corporation, and the
Government National Mortgage Association, and (e) not be an affiliate of the
Securities Administrator, the Trustee or a Seller, except insofar as the
Securities Administrator, the Trustee or its respective assignee gives its
prior written consent.
Section 29. Upon the initial sale of the Mortgage Loans, the
Custodian shall deliver to the Purchaser, the Trustee, the Securities
Administrator and the Master Servicer (a) an opinion of counsel and (b) an
officer's certificate, each in form and substance reasonably satisfactory to
the Purchaser, the Trustee, the Securities Administrator and the Master
Servicer.
Section 30. The Custodian represents, warrants to, and covenants
that:
(a) The Custodian is (i) a national banking association duly
organized, validly existing and in good standing under the laws of the United
States of America and (ii) duly qualified and in good standing and in
possession of all requisite authority, power, licenses, permits and franchises
in order to execute, deliver and comply with its obligations under the terms
of this Agreement;
(b) The execution, delivery and performance of this Agreement have
been duly authorized by all necessary corporate action and the execution and
delivery of this Agreement by the Custodian in the manner contemplated herein
and the performance of and compliance with the terms hereof by it will not (i)
violate, contravene, or create a default under any applicable laws, licenses,
or permits to the best of its knowledge, or (ii) violate, contravene
11
or create a default under any charter document or bylaw of the Custodian or to
the best of the Custodian's knowledge any contract, agreement or instrument to
which the Custodian or by which any of its property may be bound and will not
result in the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its property;
(c) The execution and delivery of this Agreement by the Custodian
and the performance of and compliance with its obligations and covenants
hereunder do not require the consent or approval of any governmental authority
or, if such consent or approval is required, it has been obtained;
(d) The Custodian has duly executed and delivered this Agreement,
and this Agreement, assuming due authorization, execution and delivery by the
other parties hereto, constitutes a legal, valid and binding obligation of the
Custodian, enforceable against it in accordance with its terms, except as the
enforcement thereof may be limited by applicable debtor relief laws and that
certain equitable remedies may not be available regardless of whether
enforcement is sought in equity or law; and
(e) There is no action, suit, proceeding or investigation pending
or, to the Custodian's knowledge, threatened, against the Custodian, which
seeks to prevent the consummation of the transaction contemplated hereby or
which, either in any one instance or in the aggregate, if determined adversely
to the Custodian would adversely affect the execution, delivery or
enforceability of this Agreement, the ability of the Custodian to perform its
obligations hereunder, or have a material adverse effect on the financial
condition of the Custodian.
Section 31. In the event that the Custodian fails to produce a
Mortgage Note, that was in its possession pursuant to Section 1 within five
(5) Business Days after such Mortgage Note has been or requested by the
Trustee, the Securities Administrator, the Master Servicer or the related
Seller, and provided, that (i) Custodian previously delivered to the Trustee,
the Securities Administrator and the Master Servicer a Custodial Receipt with
respect to such Mortgage Note; (ii) such Mortgage Note is not outstanding
pursuant to a Request for Release; and (iii) such Mortgage Note was held by
the Custodian on behalf of the Trustee (a "Custodial Delivery Failure"), then
the Custodian shall, with respect to any missing Mortgage Note, indemnify the
Trustee, the Securities Administrator, the Master Servicer, the related
Servicer and the related Seller in accordance with the succeeding paragraph of
this Section 31.
The Custodian agrees to indemnify and hold the Trustee, the
Securities Administrator and the Master Servicer harmless against any and all
direct liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements, including reasonable
attorney's fees, that may be imposed on, incurred by, or asserted against it
in connection with or arising out of any Custodial Delivery Failure. The
foregoing indemnification shall survive any termination or assignment of this
Agreement.
Section 32. The Custodian is not responsible for preparing or
filing any reports or returns relating to federal, state or local income taxes
with respect to this Agreement, other than for the Custodian's compensation or
for reimbursement of expenses. The Custodian will be responsible for the
transmission of mortgage files and loan documents, with insurance thereon as
12
provided in the normal course by the nationally recognized overnight courier
service utilized by the Custodian for such transmission. At the request of the
Trustee or the Securities Administrator, as applicable, the Custodian will
obtain and maintain additional insurance with an insurance provider specified
by the Trustee or the Securities Administrator, as applicable, against loss or
damage to such Mortgage Files and loan documents in connection with such
transmission in an amount specified by the Trustee or the Securities
Administrator, as applicable. The costs and expenses incurred in connection
with obtaining and maintaining such insurance shall be the sole responsibility
of the Trustee or Securities Administrator, which made such request; provided,
however, that if such request was made by the Trustee, any such costs shall be
borne by the Trust. 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, the Master Servicer, the
Securities Administrator, the Trustee or a Servicer, arising out of actions of
the Custodian consistent with this Agreement. In the absence of any written
instructions from the Purchaser with respect to the transmission of the
Custodian's Mortgage Files, the parties hereby agree that the Custodian may
utilize any nationally recognized overnight courier service and shall be
entitled to reimbursement from the Securities Administrator.
Section 33. The Purchaser and the Custodian further agree as
follows:
33.01: Intent of the Parties; Reasonableness.
The parties hereto acknowledge and agree that the purpose of this
Section 33 is to facilitate compliance by the Purchaser with the provisions of
Regulation AB and related rules and regulations of the Commission. The
Purchaser shall not exercise its right to request delivery of information or
other performance under these provisions other than in good faith, or for
purposes other than compliance with the Securities Act, the Exchange Act and
the rules and regulations of the Commission under the Securities Act and the
Exchange Act. Each of the parties hereto acknowledges that interpretations of
the requirements of Regulation AB may change over time, whether due to
interpretive guidance provided by the Commission or its staff, consensus among
participants in the mortgage-backed securities markets, advice of counsel, or
otherwise, and agrees to comply with reasonable requests made by the Purchaser
in good faith for delivery of information within the scope of the Custodian's
ordinary course of business under these provisions on the basis of evolving
interpretations of Regulation AB, provided, however that if extraordinary
measures are required to provide information reasonably determined by the
Custodian to be outside the Custodian's ordinary course of business, the
reasonable costs of such compliance will be borne by the Purchaser, so long as
the Custodian provides prior notice to the Purchaser. The Custodian shall
cooperate reasonably with the Purchaser to deliver to the Purchaser (including
any of its assignees or designees), any and all disclosure, statements,
reports, certifications, records and any other information necessary in the
reasonable, good faith determination of the Purchaser to permit the Purchaser
to comply with the provisions of Regulation AB.
33.02: Additional Representations and Warranties of the Custodian.
(a) The Custodian shall be deemed to represent to the Purchaser as
of the date hereof and on each date on which information is provided to the
Purchaser under Section 33.03 that, except as disclosed in writing to the
Purchaser prior to such date: (i) the Custodian is in
13
compliance with all of the requirements set forth in Section 28 hereof; (ii)
there are no material legal or governmental proceedings pending (or known to
be contemplated) against it of the type described in Item 1117 of Regulation
AB; and (iii) there are no affiliations, relationships or transactions of the
type described in Item 1119 of Regulation AB relating to the Custodian with
respect to the Purchaser or any sponsor, issuing entity, servicer, trustee,
originator, significant obligor, enhancement or support provider or other
material transaction party (as such terms are used in Regulation AB) relating
to the Securitization Transaction contemplated by the Agreement, as identified
by the Purchaser to the Custodian in writing as of the Closing Date (each, a
"Transaction Party").
(b) If so requested by the Purchaser, on or before March 15 of each
calendar year and as needed, commencing in 2007, the Custodian shall, within
five Business Days following such request, confirm in writing the accuracy of
the representations and warranties set forth in paragraph (a) of this Section
or, if any such representation and warranty is not accurate as of the date of
such confirmation, provide reasonably adequate disclosure of the pertinent
facts, in writing, to the requesting party. Any such request from the
Purchaser shall not be given more than once each calendar quarter, unless the
Purchaser shall have a reasonable basis for a determination that any of the
representations and warranties may not be accurate.
33.03: Additional Information to Be Provided by the Custodian.
For so long as the Depositor is subject to Exchange Act reporting
requirements, for the purpose of satisfying the Depositor's reporting
obligation under the Exchange Act with respect to any class of Certificates,
the Custodian shall (a) notify the Depositor in writing of any material
litigation or governmental proceedings pending against the Custodian that
would be material to Certificateholders, and (b) provide to the Depositor a
written description of such proceedings. Any notices and descriptions required
under this Section 33.03 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.
33.04: Defined Terms: The following terms are used in this Section
33 as defined below:
Commission: The United States Securities and Exchange Commission.
Determination Date: The 15th day (or, if such 15th day is not a
Business Day, the following Business Day) of each month.
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.
14
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.
33.05: Report on Assessment of Compliance and Attestation.
(a) 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 15 of each
calendar year, commencing in 2007, the Custodian shall:
(1) deliver to the Purchaser and the Master Servicer a
report 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 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 7 hereto. The Custodian hereby acknowledges
that such report will be relied upon as if it were addressed to
the Purchaser and Master Servicer; and
(2) deliver to the Purchaser and the Master Servicer a
report of a registered public accounting firm 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.
33.06: Indemnification
(a) The Custodian shall indemnify the Depositor, the Master
Servicer and the respective present and former directors, officers, employees,
agents and affiliates of each of the foregoing (each, an "Indemnified Party"),
from and against any claims, losses, damages, penalties, fines, forfeitures,
reasonable and necessary legal fees and related costs, judgments and other
costs and expenses that such Indemnified Party may sustain arising out of
third party claims based on (i) the failure of the Custodian to deliver any
information required under Subsections 33.02 and 33.03 and items required
under Subsection 33.05 of this Agreement or (ii) any material misstatement or
omission contained in any of the foregoing.
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
15
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 no event shall the Custodian or its directors, officers, agents or
employees be liable for any special, indirect or consequential damages
resulting from any action taken or omitted to be taken by it or them under, or
in connection with, this Section 33.
(b) In the case of any failure of performance described in clause
(a) of this Subsection 33.06, 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.
16
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized officers as of the date first above
written.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.,
as Purchaser
By: /s/ Xxxxxxx Xxx
------------------------------------
Name: Xxxxxxx Xxx
Title: VP
THE HEMISPHERE NATIONAL BANK,
as Seller and Servicer
By: /s/ Xxxxx Xxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Preisdent
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: SMD
WACHOVIA MORTGAGE CORPORATION,
as Seller and Servicer
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: AVP - Investor Development
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSSOCIATION, as Custodian
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2006-9AR
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Assistant Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: XX
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ Xxxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxxx Xxxxx
Title: VP
EXHIBIT 1
MORTGAGE LOAN SCHEDULE
[See Schedule I to the PSA]
EXHIBIT 2
(1) If to the Purchaser:
Xxxxxx Xxxxxxx Mortgage Capital Inc.
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Whole Loan Operations Manager
(2) If to the Custodian:
X.X. Xxxxxx Trust Company, National Association 0000 Xxxxxxxxxx
Xxxxxxxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000
Attention: Custody Manager
Phone: (000) 000-0000
Fax: (000) 000-0000
(3) If to Hemisphere, as Seller:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
with a copy to:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
If to Hemisphere, as Servicer:
The Hemisphere National Bank
0000 X. X. 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxxx
with copies to:
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
The Hemisphere National Bank
0000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
(4) If to Wachovia:
Wachovia Mortgage Corporation
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Wachovia Mortgage Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxx Xxxxxx
(7) If to the Trustee:
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-9AR
(8) Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-9AR
EXHIBIT 3
FORM OF CUSTODIAL RECEIPT
[ ], 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, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-9AR
Re: The Custodial Agreement, dated as of July 1, 2006, among
Xxxxxx Xxxxxxx Mortgage Capital Inc., as the Purchaser, The
Hemisphere National Bank and Wachovia Mortgage Corporation
as Sellers and Servicers, X.X. Xxxxxx Trust Company,
National Association, as Custodian, Xxxxx Fargo Bank,
National Association, as Master Servicer and Securities
Administrator and LaSalle Bank National Association, as Trustee
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provision of Section 4 of the above
referenced Custodial Agreement, the undersigned, as the Custodian, hereby
certifies that as to each Mortgage Loan listed on the attached Mortgage Loan
Schedules, it has reviewed the Custodian's Mortgage File and has determined
that, except as set forth in the attached exception report, (a) all documents
required to be delivered to it pursuant to Section 1 of the Custodial
Agreement are in its possession; provided, that the Custodian has no
obligation to verify the receipt of any such documents if the existence of
which was not made known to the Custodian by the Custodian's Mortgage File,
and provided, further, that the Custodian has no obligation to determine
whether recordation of any such modification is necessary; (b) such documents
have been reviewed by it and appear regular on their face and to relate to
such Mortgage Loans; provided, however, that the Custodian makes no
representation and has no responsibilities as to the authenticity of such
documents, their compliance with applicable law, or the collectability of any
of the Mortgage Loans relating thereto; (c) based upon its examination, and
only as to the foregoing documents, the information set forth on the Mortgage
Loan Schedules accurately reflects, within permitted
tolerances, the Verified Information with respect to each Mortgage Loan; and
(d) each Mortgage Note has been endorsed and each assignment has been assigned
as required under Section 1 of the Custodial Agreement. Moreover, the attached
Data Collection Schedule accurately and completely sets forth the information
required to be set forth therein pursuant to Section 4 of the Custodial
Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By:
---------------------------------------
Name:
Title:
EXHIBIT 4
FORM OF FINAL CERTIFICATION
[ ], 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, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
LaSalle Bank National Association
000 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Securities and Trust Services MSM 2006-9AR
Re: The Custodial Agreement, dated as of July 1, 2006, among
Xxxxxx Xxxxxxx Mortgage Capital Inc., as the Purchaser, The
Hemisphere National Bank and Wachovia Mortgage Corporation
as Sellers and Servicers, X.X. Xxxxxx Trust Company,
National Association, as Custodian, Xxxxx Fargo Bank,
National Association, as Master Servicer and Securities
Administrator and LaSalle Bank National Association, as Trustee
---------------------------------------------------------------
Ladies and Gentlemen:
In accordance with the provision of Section 5 of the above
referenced Custodial Agreement, the undersigned, as the Custodian, hereby
certifies that as to each Mortgage Loan listed on the attached Mortgage Loan
Schedules, it has reviewed the Custodian's Mortgage File and has determined
that, except as set forth in the attached exception report, (a) all documents
required to be delivered to it pursuant to Section 1 of the Custodial
Agreement are in its possession; provided that the Custodian has no obligation
to verify the receipt of any such documents if the existence of which was not
made known to the Custodian by the Custodian's Mortgage File, and provided,
further, that the Custodian has no obligation to determine whether recordation
of any such modification is necessary; (b) such documents have been reviewed
by it and appear regular on their face and to relate to such Mortgage Loans;
provided, however, that the Custodian makes no representation and has no
responsibilities as to the authenticity of such documents, their compliance
with applicable law, or the collectability of any of the Mortgage Loans
relating thereto; and (c) each Mortgage Note has been endorsed and each
assignment has been assigned as required under Section 1 of the Custodial
Agreement.
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION, as Custodian
By:
---------------------------------------
Name:
Title:
EXHIBIT 5(a)
X.X. Xxxxxx Trust Company, National Association
0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000,
Xxxxxx, Xxxxx 00000
Attention: Custody Manager
Re: Mortgagor:
Pool No.:
Alternative Loan No.:
Inv. Loan No.:
Inv. Code No.:
Property:
Dear [ ]:
Please be advised that the subject loan is presently delinquent and
[Name of individual Servicer] is attempting to collect the arrearage or
alternately will commence foreclosure proceedings. Therefore, would you please
release to us the Custodian's Mortgage File (as such term is defined in the
Custodial Agreement, dated as of July 1, 2006, among Xxxxxx Xxxxxxx Mortgage
Capital Inc., as the Purchaser, The Hemisphere National Bank and Wachovia
Mortgage Corporation as Sellers and Servicers, X.X. Xxxxxx Trust Company,
National Association, as Custodian, Xxxxx Fargo Bank, National Association, as
Master Servicer and Securities Administrator and LaSalle Bank National
Association, as Trustee). Should this loan re instate, all documents will be
returned to you as custodian. Please forward all of the documents to my
attention.
Very truly yours,
Document Control
Authorized Signature
EXHIBIT 5(b)
X.X. Xxxxxx Trust Company, National Association
0000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxx 000,
Xxxxxx, Xxxxx 00000
Attention: Custody Manager
Re: [Servicer] Loan Number:
ALT Loan Number:
Pool:
Series:
Customer Name:
Please return to the Servicer the Custodian's Mortgage File (as
such term is defined in the Custodial Agreement, dated as of July 1, 2006,
among Xxxxxx Xxxxxxx Mortgage Capital Inc., as the Purchaser, The Hemisphere
National Bank and Wachovia Mortgage Corporation as Sellers and Servicers, X.X.
Xxxxxx Trust Company, National Association, as Custodian, Xxxxx Fargo Bank,
National Association, as Master Servicer and Securities Administrator and
LaSalle Bank National Association, as Trustee) on the above referenced loan,
as the loan has been [paid in full] [repurchased] [liquidated].
These documents should be returned to:
[Name and Address of individual Servicer]
If you have any questions concerning this matter, please feel free
to contact me directly at _________.
Sincerely,
Reconveyance Department
Name:_______________________________
I hereby certify that all amounts received in connection with the
repurchase, liquidation, or payment in full of this loan, as applicable, have
been credited to the Custodial Account as provided in the relevant Agreement
for the above referenced issue.
Settlement Date:
--------------------
Name:
-------------------------------
Title:
------------------------------
EXHIBIT 6
LIST OF AUTHORIZED SIGNATORIES FOR [EACH SERVICER].
NAME SPECIMEN SIGNATURE
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
------------------------------- --------------------------------
EXHIBIT 7
SERVICING CRITERIA 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":
------------------------------------------------------------------------------------------------------------
APPLICABLE
SERVICING
SERVICING CRITERIA 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.
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APPLICABLE
SERVICING
SERVICING CRITERIA CRITERIA
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Reference Criteria
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Investor Remittances and Reporting
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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.
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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
1122(d)(3)(iii) agreements.
-------------------- ---------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related X
mortgage loan documents.
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Mortgage loan and related documents are safeguarded as
1122(d)(4)(ii) the transaction agreements required by X
-------------------- ---------------------
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.
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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.
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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.
-------------------- ---------------------
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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APPLICABLE
SERVICING
SERVICING CRITERIA 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.
-------------------- ---------------------
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.
-------------------- ---------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
1122(d)(4)(xv) AB, is maintained as set forth in the transaction agreements.
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SCHEDULE 1-A
LIST OF DOCUMENTS FOR THE HEMISPHERE NATIONAL BANK
With respect to each Mortgage Loan, the Mortgage Loan Documents
shall consist of the following:
(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. To the extent that there is no room on the face of the Mortgage Notes
for endorsements, the endorsement may be contained on an allonge, if state law
so allows and the Custodian is so advised by the Seller that state law so
allows. 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. If in connection
with any Mortgage Loan, the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, an Officer's Certificate of the
Seller (or certified by the title company, escrow agent, or closing attorney)
stating that such Mortgage has been dispatched to the appropriate public
recording office for recordation and that the original recorded Mortgage or a
copy of such Mortgage certified by such public recording office to be a true
and complete copy of the original recorded Mortgage will be promptly delivered
to the Custodian upon receipt thereof by the Seller; or (ii) in the case of a
Mortgage where a public recording office retains the original recorded
Mortgage or in the case where a Mortgage is lost after recordation in a public
recording office, a copy of such Mortgage certified by such public recording
office to be a true and complete copy of the original recorded Mortgage;
(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, in form and substance
acceptable for recording (except with respect to MERS Designated Loans). The
Assignment of Mortgage must be duly recorded only if recordation is either
necessary under applicable law or commonly required by private institutional
mortgage investors in the area where the Mortgaged Property is located or on
direction of the Purchaser as provided in this Agreement. If the Assignment of
Mortgage is to be recorded, the Mortgage shall be assigned to the Purchaser.
If the Assignment of Mortgage is not to be recorded, 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]";
(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 Loan, MERS) with evidence of recording thereon, or
if any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains
the original recorded assignments of mortgage, the Seller shall deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Seller (or certified by the
title company, escrow agent, or closing attorney) stating that such
intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office,
a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(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;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op Lease,
if any, and the assignment of such Co-op Lease, if any, 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; and
(iv) copies of the financial statement filed by the originator as secured
party and, if applicable, a filed UCC-3 assignment of the subject security
interest showing a complete chain of title, together with, if applicable, an
executed UCC-3 assignment of such security interest by the Seller in a form
sufficient for filing; 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 an Officer's Certificate of the Seller is delivered to
the Purchaser because of a delay caused by the public recording office in
returning any recorded document, the Seller shall deliver to the Purchaser,
within 90 days of the related Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian; provided, however, that any
recorded document shall in no event be delivered later than one year following
the related Closing Date. An extension of the date specified in clause (iv)
above may be requested from the Purchaser, which consent shall not be
unreasonably withheld.
SCHEDULE 1-B
LIST OF DOCUMENTS FOR WACHOVIA MORTGAGE CORPORATION
With respect to each Mortgage Loan, the Mortgage File shall include
each of the following items, which shall be available for inspection by the
Purchaser, and which shall be retained by Wachovia Mortgage Corporation (the
"Seller") in the Servicing File or delivered to the Purchaser or its designee
pursuant to Sections 2.04 and 2.05 of the Seller's Purchase, Warranties and
Servicing Agreement.
1. The original Mortgage Note endorsed "Pay to the order of
___________________ without recourse," and signed in the name of the Seller by
an authorized officer, with all intervening endorsements showing a complete
chain of title from the originator to the Seller. If the Mortgage Loan was
acquired by the Seller in a merger, the endorsement must be by "[Seller],
successor by merger to the [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name,
the endorsement must be by "[Seller] formerly known as [previous name]". If
the original note is unavailable, seller will provide an affidavit of lost
note (in form acceptable to the Purchaser) stating that the original Mortgage
Note was lost or destroyed, together with a copy of such Mortgage Note and
indemnifying the Purchaser against any and all claims arising as a result of
any person or entity claiming they are the holder of the note or that the note
has been paid off and returned.
2. A true certified copy, certified by the [title insurer], of the
applicable First Lien.
3. Except as provided below and for each Mortgage Loan that is not
a MERS Mortgage Loan, the original Mortgage with evidence of recording
thereon, or a copy thereof certified by the public recording office in which
such mortgage has been recorded or, if the original Mortgage has not been
returned from the applicable public recording office, a true certified copy,
certified by the [title insurer], of the original Mortgage together with a
certificate of the Seller certifying that the original Mortgage has been
delivered for recording in the appropriate public recording office of the
jurisdiction in which the Mortgaged Property is located and in the case of
each MERS Mortgage Loan, the original Mortgage, noting the presence of the MIN
of the Mortgage Loans and either language indicating that the Mortgage Loan is
a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the
original Mortgage and the assignment thereof to MERS, with evidence of
recording indicated thereon, or a copy of the Mortgage certified by the public
recording office in which such Mortgage has been recorded.
4. The original or certified to be a true copy or if in electronic
form identified on the Mortgage Loan Schedule, the certificate number,
certified by the Seller, of the related Primary Mortgage Insurance Policy, if
required.
5. In the case of each Mortgage Loan that is not a MERS Mortgage
Loan, the original Assignment, from the Seller in accordance with Purchaser's
instructions, which assignment shall, but for any blanks requested by the
Purchaser, be in form and substance
acceptable for recording, or a copy certified by the Seller as a true and
correct copy of the original Assignment which has been sent for recordation.
If the Mortgage Loan was acquired or originated by the Seller while doing
business under another name, the Assignment must be by "[Seller] formerly
known as [previous name]".
6. With respect to Mortgage Loans that are not Co-op Loans, the
original policy of title insurance, including riders and endorsements thereto,
or if the policy has not yet been issued, a written commitment or interim
binder or preliminary report of title issued by the title insurance or escrow
company.
7. Originals of all recorded intervening Assignments, or copies
thereof, certified by the public recording office in which such Assignments
have been recorded showing a complete chain of title from the originator to
the Seller, with evidence of recording thereon, or a copy thereof certified by
the public recording office in which such Assignment has been recorded or, if
the original Assignment has not been returned from the applicable public
recording office, a true certified copy, certified by the [title insurer] of
the original Assignment together with a certificate of the [title insurer]
certifying that the original Assignment has been delivered for recording in
the appropriate public recording office of the jurisdiction in which the
Mortgaged Property is located.
8. Originals, or copies thereof certified by the public recording
office in which such documents have been recorded, of each assumption,
extension, modification, written assurance or substitution agreements, if
applicable, or if the original of such document has not been returned from the
applicable public recording office, a true certified copy, certified by the
[title insurer], of such original document together with certificate of Seller
certifying the original of such document has been delivered for recording in
the appropriate recording office of the jurisdiction in which the Mortgaged
Property is located.
9. If the Mortgage Note or Mortgage or any other material document
or instrument relating to the Mortgage Loan has been signed by a person on
behalf of the Mortgagor, the original power of attorney or other instrument
that authorized and empowered such person to sign bearing evidence that such
instrument has been recorded, if so required in the appropriate jurisdiction
where the Mortgaged Property is located (or, in lieu thereof, a duplicate or
conformed copy of such instrument, together with a certificate of receipt from
the recording office, certifying that such copy represents a true and complete
copy of the original and that such original has been or is currently submitted
to be recorded in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located), or if the original
power of attorney or other such instrument has been delivered for recording in
the appropriate public recording office of the jurisdiction in which the
Mortgaged Property is located.
10. With respect to a Co-op Loan: (i) a copy of the Co-op Lease and
the assignment of such Co-op Lease to the originator of the Mortgage Loan,
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 in substantially the same form as standard a
"AZTECH" form; (iv) copies of the financial statement filed by the originator
as secured party and, 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 in a form sufficient for filing.
11. The original of any guarantee executed in connection with the
Mortgage Note. Notwithstanding anything to the contrary herein, the Seller may
provide one certificate for all of the Mortgage Loans indicating that the
documents were delivered for recording.
