CUSTODY AGREEMENT
Exhibit
10.4
Execution
Version
This
CUSTODY AGREEMENT (the "Agreement") dated as of July 1, 2007, by and among
XXXXX
FARGO BANK, N. A., having an address at 00 Xxxxxxxxx Xxxx, Xxxxxx, Xxxxx 000,
XX
00000, Attention: Mortgage Document Custody, as Custodian (the "Custodian"),
HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee (the "Trustee"), SEQUOIA
RESIDENTIAL FUNDING, INC., a Delaware corporation, having an address at Xxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000, Attention: Xxxx Xxxxxxxxxxx,
as Depositor (the "Depositor") and RWT HOLDINGS, INC., a Delaware corporation,
having an address at Xxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxxxx, XX 00000,
Attention: Xxxx Xxxxxxxxxxx, as Seller (the "Seller").
WITNESSETH:
WHEREAS,
Mortgage Pass-Through Certificates (the “Certificates”) are to be issued (the
“Transaction”) pursuant to a Pooling and Servicing Agreement, dated as of July
1, 2007 (the “Pooling and Servicing Agreement”) by and among the Trustee and
Sequoia Residential Funding, Inc., as depositor, which Certificates will
evidence interests in, among other things, certain residential mortgage loans
(the "Residential Mortgage Loans") and cooperative mortgage loans (the
"Cooperative Loans" and together, the Residential Mortgage Loans and the
Cooperative Loans, the “Mortgage Loans”); and
WHEREAS,
the Depositor has agreed to deliver or cause to be delivered certain documents
with respect to the Mortgage Loans subject to the Transaction to the Custodian,
on behalf of the Trustee, and the Custodian has agreed to take and maintain
possession of such documents in accordance with the terms and conditions
hereof.
NOW,
THEREFORE, in consideration of the mutual undertakings herein expressed, the
parties hereto agree as follows:
1. All
capitalized terms not otherwise defined herein have the respective meanings
set
forth in the Pooling and Servicing Agreement. The term “business day” as used
herein shall have the same meaning as in the Pooling and Servicing Agreement
except that any day on which banking institutions in the State of California
or
the State of Utah are authorized or obligated by law or executive order to
be
closed shall be added as an exclusion to the definition of “business
day.”
2. No
later
than three (3) business days before the Closing Date, or as otherwise mutually
agreed by the Depositor and the Custodian, (x) the Depositor shall deliver,
or
cause to be delivered, to the Custodian and the Trustee, notice of the Closing
Date and a schedule of Mortgage Loans subject to such Transaction (the "Mortgage
Loan Schedule"), which Mortgage Loan Schedule shall identify each loan that
is a
Cooperative Loan and shall be delivered either in the form of a
computer-readable tape or by means of electronic modem transmission, and (y)
the
Depositor shall deliver, or shall cause to be delivered, and shall release
to
the Custodian the following documents, as applicable, pertaining to each of
the
Mortgage Loans identified in the Mortgage Loan Schedule, which documents the
Custodian shall hold for the sole benefit of the Trustee, its successors or
assigns:
A. With
respect to Mortgage Loans (other than Cooperative Loans):
(i) the
original note or other evidence of indebtedness (the "Mortgage Note") of the
obligor thereon (each such obligor, a "Mortgagor") 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
(in the event that the Mortgage Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[Last Endorsee], successor
by merger to [name of predecessor]"; in the event that the Mortgage Loan was
acquired or originated by the Last Endorsee while doing business under another
name, the signature must be in the following form: "[the Last Endorsee],
formerly known as [previous name]"); provided that any such endorsement may
be
stamped or generated electronically, if acceptable under all applicable laws
and
regulations and the endorsing entity had adopted appropriate authorizing
resolutions prior to such stamped or electronic endorsement;
(ii) except
as
to ________ (the “Xxxxx Fargo Loans”), the original mortgage, deed of trust or
other instrument (the "Mortgage") creating a first lien on the underlying
property securing the Mortgage Loan (the "Mortgaged Property") and bearing
evidence that such instrument has been recorded in the appropriate jurisdiction
where the Mortgaged Property is located (or, in lieu of the original of the
Mortgage, a true copy certified by the originator, or a duplicate or conformed
copy of the Mortgage, together with a certificate of either the closing attorney
or an officer of the title insurer that issued the related title insurance
policy, certifying that such copy represents a true and correct 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); and if the Mortgage Loan is a MERS
Designated Mortgage Loan, no mortgage, deed of trust or other such instrument
shall be required for any Mortgage Loan but rather the Depositor shall cause
the
Trustee to be recorded as the beneficial owner of the Mortgage Loan pursuant
to
the MERS rules for electronically tracking changes in ownership
rights;
(iii) an
original assignment of the Mortgage (the “Assignment of Mortgage”), in blank, in
form and substance acceptable for recording in the relevant jurisdiction and
signed in the name of the Last Endorsee (in the event that the Mortgage Loan
was
acquired by the Last Endorsee in a merger, the signature must be in the
following form: "[the Last Endorsee], successor by merger to [name of
predecessor"]; in the event that the Mortgage Loan was acquired or originated
while doing business and under another name, the signature must be in the
following form: "[the Last Endorsee], formerly known as [previous name]");
and
if the Mortgage Loan is a MERS Designated Mortgage Loan, no Assignment of
Mortgage shall be required;
(iv) the
originals or certified copies of all intervening assignments of the Mortgage,
if
any, with evidence of recording thereon, showing a complete chain of title
to
the Last Endorsee, including any warehousing assignment;
2
(v) any
assumption, modification, written assurance, substitution, consolidation,
extension or guaranty agreement, if applicable;
(vi) the
original policy of title insurance (or a true copy thereof) with respect to
any
Mortgage Loan, or, if such policy has not yet been delivered by the insurer,
the
title commitment or title binder to issue same; and
(vii) 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).
B. With
respect to Cooperative Loans (other than Cooperative Loans in
California):
(i) the
original note or other evidence of indebtedness (the "Mortgage Note") of the
obligor thereon (each such obligor, a "Mortgagor") 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
(in the event that the Mortgage Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[Last Endorsee], successor
by merger to [name of predecessor]"; in the event that the Mortgage Loan was
acquired or originated by the Last Endorsee while doing business under another
name, the signature must be in the following form: "[the Last Endorsee],
formerly known as [previous name]"); provided
that any such endorsement may be stamped or generated electronically, if
acceptable under all applicable laws and regulations and the endorsing entity
had adopted appropriate authorizing resolutions prior to such stamped or
electronic endorsement;
(ii) the
original loan and security agreement;
(iii) the
original cooperative shares;
(iv) a
stock
power executed in blank by the person in whose name the cooperative shares
are
issued;
(v) the
proprietary lease or occupancy agreement accompanied by an assignment in blank
of such proprietary lease;
3
(vi) the
recognition agreement executed by the cooperative corporation, which requires
the cooperative corporation to recognize the rights of the lender and its
successors in interest and assigns, under the Cooperative Loan;
(vii) UCC-1
financing statements with recording information thereon from the appropriate
governmental recording offices if necessary to perfect the security interest
of
the Cooperative Loan under the Uniform Commercial Code in the jurisdiction
in
which the cooperative project is located, accompanied by UCC-3 financing
statements executed in blank for recordation of the change in the secured party
thereunder; and
(viii) any
guarantees, if applicable.
C. With
respect to Cooperative Loans in the state of California:
(i) the
original note or other evidence of indebtedness (the "Mortgage Note") of the
obligor thereon (each such obligor, a "Mortgagor") 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
(in the event that the Mortgage Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[Last Endorsee], successor
by merger to [name of predecessor]"; in the event that the Mortgage Loan was
acquired or originated by the Last Endorsee while doing business under another
name, the signature must be in the following form: "[the Last Endorsee],
formerly known as [previous name]"); provided
that any such endorsement may be stamped or generated electronically, if
acceptable under all applicable laws and regulations and the endorsing entity
had adopted appropriate authorizing resolutions prior to such stamped or
electronic endorsement;
(ii) the
original security agreement;
(iii) the
original cooperative shares;
(iv) a
stock
power executed in blank by the person in whose name the cooperative shares
are
issued;
(v) the
proprietary lease or occupancy agreement accompanied by an assignment in blank
of such proprietary lease;
(vi) the
recognition agreement executed by the cooperative corporation, which requires
the cooperative corporation to recognize the rights of the lender and its
successors in interest and assigns, under the Cooperative Loan;
4
(vii) the
original executed leasehold deed of trust for the related mortgaged property
with evidence of recording thereon or, if such leasehold deed of trust has
been
submitted for recording but has not been returned from the applicable public
recording office, has been lost or is not otherwise available, a copy of such
leasehold deed of trust certified to be a true and complete copy of the original
submitted for recording;
(viii) an
original assignment of leasehold deed of trust, in form and substance acceptable
for recording, assigned to blank; and, if any, the original recorded intervening
assignments of leasehold deed of trust showing a complete chain of
assignments;
(ix) the
original policy of title insurance or with respect to any Mortgage Loan, if
such
policy has not yet been delivered by the insurer, the title commitment or title
binder to issue same; and
(x) any
guarantees, if applicable.
In
the
event the Depositor cannot deliver or cause to be delivered any of the foregoing
documents so required at the time of the Closing Date, other than items 2A(i),
2B(i) and 2C(i), the Depositor shall deliver or cause to be delivered such
documents to the Custodian as promptly as possible upon receipt thereof, but
in
no event later than the 270th
day
after the Closing Date. From time to time, the Servicer shall forward to the
Custodian additional original documents evidencing an assumption or modification
of a Mortgage Loan approved by the Servicer and shall provide the Trustee with
notice of delivery of such documents. All documents held by the Custodian as
to
each Mortgage Loan pursuant to this Paragraph 2 are referred to herein as the
"Custodian's Mortgage File".
3. The
Trustee hereby appoints the Custodian as the custodian of the Trustee and any
successor to or assignee of the Trustee, and the Custodian hereby accepts and
agrees to act as custodian for the Trustee and any successor to or assignee
of
the Trustee in accordance with the terms and conditions of this Custody
Agreement. With respect to each Custodian's Mortgage File delivered to the
Custodian, the Custodian is solely and exclusively the custodian for the Trustee
or its successor or assignee for all purposes (including, but not limited to,
the perfection of the security interest of the Trustee in such Mortgage Loans).
The Custodian shall hold in its possession in California or Utah, all
Custodian's Mortgage Files received by it from the Depositor from time to time
for the sole and exclusive use and benefit of the Trustee and the Trustee's
successors and assignees as provided herein, all present and future
Certificateholders, except as otherwise expressly provided herein, shall make
disposition thereof only in accordance with the written instructions of the
Trustee or the Servicer as agent for the Trustee. The Custodian shall segregate
and maintain continuous custody of all documents constituting the Custodian's
Mortgage Files received by it in secure and fire resistant facilities, all
in
accordance with customary standards for such custody.
4. A. When
the
Custodian has received from the Depositor possession of each Custodian's
Mortgage File for the Transaction, the Custodian shall verify that:
(a) all
documents described in Paragraphs 2(A)(i)-(iii), (vi) and (vii), 2(B) and 2(C)
required to be delivered to it pursuant to this Custody Agreement are in the
Custodian's possession;
5
(b) such
documents have been reviewed 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:
(i) the
information set forth on the Mortgage Loan Schedule with respect to each
Mortgage Loan accurately reflects the information contained in the documents
contained in each Custodian's Mortgage File as to (A) the name of the respective
Mortgagor, (B) the address of the respective Mortgaged Property, (C) the
original principal amount of the related Mortgage Note, and (D) the original
interest rate borne by the Mortgage Loan;
(ii) the
Mortgage Note and the Mortgage or the loan and security agreement, as
applicable, each bears an original signature or signatures purporting to be
the
signature or signatures of the person or persons named as the maker and
mortgagor or grantor or, in the case of copies of the Mortgage permitted under
Paragraph 2(a)(ii), that such copies bear a reproduction of such signature
or
signatures; and
(iii) the
original principal amount of the indebtedness secured by the Mortgage is
identical to the original principal amount of the Mortgage Note;
and
(d) each
Mortgage Note has been endorsed as noted in Paragraph 2(A)(i), 2(B)(i) and
2(C)(i) herein and each Assignment of Mortgage has been completed as noted
in
Paragraph 2(A)(iii) herein.
In
making
such verification, the Custodian may rely conclusively on the Mortgage Loan
Schedule and the documents constituting the Custodian's Mortgage File, and
the
Custodian shall have no obligation to independently verify the validity,
enforceability, sufficiency or genuineness of any document in any Custodian's
Mortgage File or any Mortgage Loan hereunder, nor the collectibility,
insurability, effectiveness or suitability of any Mortgage Loan hereunder.
Upon
completing such verification, the Custodian shall advise the Trustee of its
receipt of all such Custodian's Mortgage Files and shall forward to the Trustee
on the Closing Date an initial trust receipt in the form annexed hereto as
Exhibit One-A (the "Initial Trust Receipt") with respect to the Mortgage Loans
(other than any Mortgage Loan paid in full or any Mortgage Loan specifically
identified on the Schedule of Exceptions attached to the Trust Receipt as
Schedule B (the “Schedule of Exceptions”) as not covered by such Trust Receipt)
listed on the Mortgage Loan Schedule. If the Custodian determines from such
verification that any discrepancy or deficiency exists with respect to a
Custodian's Mortgage File, the Custodian shall note such discrepancy on the
Schedule of Exceptions attached to the Trust Receipt, and, upon the request
of
the Depositor or the Trustee, the Custodian shall deliver a copy (which shall
be
electronic, if requested) of the Schedule of Exceptions to the Depositor within
one (1) business day after Depositor's request therefor. During the life of
the
Mortgage Loans (while subject to this Custody Agreement), in the event the
Custodian discovers any defect with respect to the Custodian's Mortgage File,
the Custodian shall give written specification of such defect to the Depositor,
and the Trustee. 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.
6
B. Within
30
days after the Closing Date, the Depositor shall complete or cause to be
completed the Assignments of Mortgage in the name of “HSBC Bank USA, National
Association, as Trustee, for Sequoia Mortgage Trust 2007-3 Mortgage Pass-Through
Certificates” (or shall prepare or cause to be prepared new forms of Assignment
of Mortgage so completed in the name of the Trustee) for each Mortgaged Property
located in a state, if any, not covered by the opinion of counsel referred
to in
Section 2.01 of the Pooling and Servicing Agreement. The Custodian shall release
such completed Assignments of Mortgage to the Depositor or its designee for
recording and the Depositor shall cause such recorded Assignments of Mortgage
(or, in lieu of the original recorded Assignment of Mortgage, a duplicate or
conformed copy of the Assignment of Mortgage, together with a certificate of
receipt from the recording office, certifying that such copy represents a true
and correct 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 Mortgages Property is located) to be returned to the
Custodian within 270 days after the Closing Date, and added to the Custodian’s
Mortgage Files. Notwithstanding any other provision herein, the Custodian shall
not have any responsibility for completing any endorsement on any Mortgage
Note
or completing or recording any Assignment of Mortgage, unless the Custodian's
services and expenses in connection with any such endorsement of Mortgage Note
or completion or recordation of Assignment of Mortgage are fully reimbursed
and
the Custodian has otherwise agreed to complete such endorsement of Mortgage
Note
or complete and record such Assignment of Mortgage. On the 270th
day
after the Closing Date (or the first business day thereafter) the Custodian
shall deliver a Final Trust Receipt in the form annexed hereby as Exhibit One-B
(the “Final Trust Receipt”) to the Trustee, against receipt of the Initial Trust
Receipt from the Trustee for cancellation. The term “Trust Receipt” shall refer
to the Initial Trust Receipt until exchanged for the Final Trust Receipt and
thereafter to the Final Trust Receipt.
5. Each
Trust Receipt, upon initial issuance or reissuance upon transfer, shall be
dated
the date of issuance thereof and shall evidence the receipt and possession
of
the Custodian's Mortgage File by the Custodian on behalf of the Trustee and
the
Trustee's right to possess the Custodian's Mortgage File with respect to which
that Trust Receipt is issued. Prior to due surrender of a Trust Receipt pursuant
to Paragraph 6, the Custodian shall treat the Trustee as the individual person
or entity entitled to possession of the Custodian's Mortgage File evidenced
by
such Trust Receipt for all purposes whatsoever, subject to the terms of this
Custody Agreement, and the Custodian shall not be affected by notice of any
facts to the contrary. No Trust Receipt shall be valid for any purpose unless
substantially in the form set forth in Exhibit One-A or One-B to this Custody
Agreement and executed by manual signature of an authorized officer of the
Custodian, and such signature upon any Trust Receipt shall be conclusive
evidence, and the only evidence, that such Trust Receipt has been duly delivered
under this Custody Agreement. Trust Receipts bearing the manual signatures
of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Custodian shall bind the Custodian, notwithstanding
that such individuals or any of them have ceased to be so authorized prior
to
the delivery of those Trust Receipts. Each Trust Receipt shall have attached
as
Schedule A thereto a schedule, in the format of the Mortgage Loan Schedule,
identifying the Mortgage Loans for which the Trust Receipt is issued. The
Custodian shall keep a register in which the Custodian shall provide for the
registration of transfers of Trust Receipts as herein provided and in which
it
shall record the name and address of the person to whom each Trust Receipt
is
issued. In the event that the Trust Receipt is lost, stolen, mutilated or
destroyed, the Custodian shall issue a new Trust Receipt to the registered
holder of such lost, stolen, mutilated or destroyed Trust Receipt upon receiving
a reasonably satisfactory commitment from such holder to indemnify the Custodian
and hold the Custodian harmless in respect of the issuance of such new Trust
Receipt.
7
6. Upon
receipt of written directions from the Trustee at any time, and upon the prior
tender by the Trustee of the applicable Trust Receipt, the Custodian shall
deliver all or any portion of the Custodian's Mortgage Files held by it to
the
Trustee, or to such other party as the Trustee may direct, and to the place
indicated in any such written direction from the Trustee and shall deliver
to
the Trustee a new Trust Receipt with respect to the Custodian's Mortgage Files
retained by the Custodian. Upon receipt by the Custodian of written notification
from the Trustee that the Trustee has sold all or a portion of the Mortgage
Loans, which notification shall state the name and address of the purchaser
and
the date of sale and shall be accompanied by the original Trust Receipt or
Trust
Receipts for such Mortgage Loans delivered to the Trustee, the Custodian shall
change its records to reflect that such purchaser is the owner of such Mortgage
Loans and the related Custodian's Mortgage Files and shall immediately, upon
the
direction of the Trustee, either deliver the applicable Custodian's Mortgage
Files to such purchaser or issue a Trust Receipt in the name of such purchaser.
The Custodian shall then deliver to the Trustee a new Trust Receipt reflecting
all Mortgage Loans evidenced by the surrendered Trust Receipts with respect
to
which the Custodian still holds the related Custodian's Mortgage Files on behalf
of the Trustee. The Custodian shall execute and deliver such instruments of
transfer or assignment, prepared by the purchaser or the Trustee, in each case
without recourse, as shall be necessary to vest in the purchaser, the Trustee's
interest in any Mortgage Loan released thereto. The Trustee shall deliver to
the
Depositor a copy of any written requests made pursuant to this Paragraph 6.
Every Trust Receipt presented or surrendered for transfer shall be duly endorsed
by the holder thereof, or be accompanied by a written instrument of transfer,
duly executed by the holder thereof and such holder's prospective transferee.
No
service charge against the presenter of a Trust Receipt shall be made for any
registration or transfer of any Trust Receipt, but the Custodian may require
payment of a sum sufficient to cover any tax or governmental charge that may
be
imposed in connection with any transfer of any Trust Receipt, which shall be
paid by the Depositor or the transferee. Each Trust Receipt surrendered for
registration of transfer shall be canceled by the Custodian. Any purchaser
of a
Mortgage Loan shall succeed to all the rights and obligations of the Trustee
under this Custody Agreement with respect to such Mortgage Loan and the related
Custodian's Mortgage File. Any purchaser of all of the Mortgage Loans remaining
subject to this Custody Agreement shall assume the Depositor’s obligation for
the payment of the Custodian's fees and expenses as described in this Custody
Agreement.
8
7. On
or
before March 1st of each calendar year, beginning with March 1, 2008, the
Custodian shall, at its own expense, cause a firm of independent public
accountants (who may also render other services to Custodian), which is a member
of the American Institute of Certified Public Accountants, to furnish to the
Seller, the Depositor, the Securities Administrator and Master Servicer (i)
year-end audited (if available) financial statements of the Custodian and (ii)
a
report to the effect that such firm that attests to, and reports on, the
assessment made by such asserting party pursuant to Section 8 below, which
report shall be made in accordance with standards for attestation engagements
issued or adopted by the Public Company Accounting Oversight Board.
8. On
or
prior to the Closing Date, the Custodian shall deliver to the Seller, the Master
Servicer, the Securities Administrator and the Depositor a certification in
the
form of Exhibit Seven attached hereto regarding the items it will address in
its
assessment of compliance with the servicing criteria under this Section 8.
On or
before March 1st of each calendar year, beginning with March 1, 2008, the
Custodian shall deliver to the Seller, the Master Servicer, the Securities
Administrator and the Depositor a report regarding its assessment of compliance
with the servicing criteria identified in Exhibit Seven attached hereto, as
of
and for the period ending the end of the fiscal year ending no later than
December 31 of the year prior to the year of delivery of the report, with
respect to asset-backed security transactions taken as a whole in which the
Custodian is performing any of the servicing criteria specified in Exhibit
Seven
and that are backed by the same asset type backing such asset-backed securities.
Each such report shall include (a) a statement of the party’s responsibility for
assessing compliance with the servicing criteria applicable to such party,
(b) a
statement that such party used the criteria identified in Item 1122(d) of
Regulation AB (17 C.F.R. §§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, “Regulation AB”) (§ 229.1122(d)) to assess compliance
with the applicable servicing criteria, (c) disclosure of any material instance
of noncompliance identified by such party, and (d) a statement that a registered
public accounting firm has issued an attestation report on such party’s
assessment of compliance with the applicable servicing criteria, which report
shall be delivered by the Custodian as provided in this Section 8.
9. The
Custodian has not and shall not engage any subcontractor which is “participating
in the servicing function” within the meaning of Item 1122 of Regulation
AB.
10. In
the
event that any specific Mortgage Loan document is required by the Servicer
either (a) because such Mortgage Loan has been paid in full and is to be
released by the Servicer to the maker of the respective Mortgage Note, or (b)
to
facilitate enforcement and collection procedures with respect to any Mortgage
Note, the Servicer shall prepare a certificate in the form of Exhibit Two hereto
("Request for Release of Documents") and deliver such certificate to the
Custodian with a copy to the Trustee. Notwithstanding anything to the contrary
herein, following receipt by the Custodian of written notice from the Trustee
that the Trustee’s prior authorization shall thereafter be required for release,
the Custodian shall not release to the Servicer any Custodian's Mortgage File
without the prior written authorization of the Trustee. Any Trust Receipt issued
while any Custodian's Mortgage File is outstanding with the Servicer shall
reflect that the Custodian holds such Custodian's Mortgage File as custodian
for
the Trustee pursuant to this Custody Agreement, but the Schedule of Exceptions
shall specify that the Custodian has released such Custodian's Mortgage File
to
the Servicer pursuant to this paragraph. All Custodian's Mortgage Files so
released to the Servicer shall be held by it in trust for the benefit of the
Trustee in accordance with the Pooling and Servicing Agreement. In the case
of
documents released pursuant to clause (b) above, the Servicer shall return
to
the Custodian the Custodian's Mortgage File when the Servicer's need therefor
in
connection with such enforcement or collection procedures no longer exists,
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of
a
certification to this effect from the Servicer to the Custodian in the form
annexed hereto as Exhibit Two, the Custodian shall thereupon reflect any such
liquidation on the list of Mortgage Loans maintained by it pursuant to Paragraph
13 of this Custody Agreement.
9
11. It
is
understood that the Custodian will charge the Seller and the Seller agrees
to
pay, all of the Custodian’s fees and expenses for its services under this
Custody Agreement.
12. The
Trustee, with or without cause, may (i) subject to Section 4(B), require the
Custodian to complete the endorsements on the Mortgage Notes, and/or (ii) upon
sixty (60) days written notice, remove and discharge the Custodian, or any
successor Custodian thereafter appointed, from the performance of its duties
under this Custody Agreement by written notice from the Trustee to the Custodian
or the successor Custodian, with a copy of such notice to the Depositor. Having
given notice of such removal, the Trustee shall promptly appoint by written
instrument a successor Custodian to act on behalf of the Trustee, which
successor may be the Trustee or an affiliate of the Trustee. One original
counterpart of such instrument shall be delivered to the Trustee, one copy
shall
be delivered to the Depositor and one copy shall be delivered to the successor
Custodian. In the event of any such removal, upon surrender of all outstanding
Trust Receipts and the payment of all compensation and reimbursement of all
expenses due to the Custodian, the Custodian shall promptly transfer to the
successor Custodian, as directed by the Trustee, all of the Custodian's Mortgage
Files being administered under this Custody Agreement. In the event of any
such
removal and discharge of the Custodian and appointment of a successor Custodian,
unless such removal and discharge shall be for a material breach of this Custody
Agreement, the Depositor shall not be responsible for any fees of the successor
Custodian in excess of the fees formerly paid to the Custodian in respect of
the
Transaction. In the event of any removal and discharge of the Custodian and
appointment of a successor Custodian without cause, the Seller shall be
responsible for any fees of the successor Custodian in excess of the fees
formerly paid to the Custodian in respect of the Transaction.
13. The
Custodian may terminate its obligations under this Custody Agreement upon at
least sixty (60) days written notice to the Depositor, and the Trustee. In
the
event of such termination, the Depositor shall appoint a successor Custodian,
subject to approval by the Trustee, whose consent shall not be unreasonably
withheld. If the Depositor is unable to appoint a successor Custodian within
a
reasonable period of time, the Trustee shall appoint a successor Custodian.
The
payment of such successor Custodian's fees and expenses shall be the sole
responsibility of the Depositor. Upon such appointment and upon surrender of
all
outstanding Trust Receipts and the payment of all compensation and reimbursement
of all expenses due to the Custodian, the Custodian shall promptly transfer
to
the successor Custodian, as directed, all Custodian's Mortgage Files being
administered under this Custody Agreement. The Custodian's obligations hereunder
shall not in any event be terminated until the Custodian's Mortgage Files have
been delivered to the successor Custodian or to the Trustee. If no successor
Custodian has been appointed within sixty (60) days after the delivery of the
above-referenced written notice by the Custodian to the Depositor and the
Trustee, the Custodian may petition a court of competent jurisdiction to appoint
a successor Custodian.
10
14. Upon
reasonable prior written notice to the Custodian (which, in any event, shall
be
at least three (3) business days'), the Trustee and Certificateholders which
are
savings and loan associations, banks or insurance companies, the Office of
Thrift Supervision, the FDIC and the Supervisory Agents and examiners of the
Office of Thrift Supervision and the FDIC or examiners of any other federal
or
state banking or insurance regulatory authority and their respective agents,
accountants, attorneys and auditors will be permitted during normal business
hours to examine the Custodian's Mortgage Files at the Custodian's
offices.
15. The
Custodian shall, at its own expense, maintain at all times during the existence
of this Custody Agreement and keep in full force and effect (a) fidelity
insurance, (b) theft of documents insurance, and (c) forgery insurance. All
such
insurance shall be in amounts, with standard coverage and subject to
deductibles, as are customary for insurance typically maintained by banks that
act as custodian in similar transactions. A certificate of the respective
insurer as to each such policy shall be furnished to the Trustee, upon request.
All Custodian’s Mortgage Files shall be maintained in a fire-resistant
facility.
16. Upon
the
request of the Trustee or the Depositor, the Custodian shall, not later than
one
(1) business day after receipt of such request, provide to the Trustee, as
the
case may be, a list of all the Mortgage Loans for which Custodian holds a
Custodian's Mortgage File pursuant to this Custody Agreement and a list of
documents missing from each Custodian's Mortgage File. Such list may be in
the
form of a copy of the Mortgage Loan Schedule with manual deletions to
specifically denote any Mortgage Loans paid off, liquidated or repurchased
since
the date of this Custody Agreement.
17. Upon
the
request of the Trustee and at the cost and expense of the Seller, the Custodian
shall provide the Trustee with copies of the Mortgage Notes, Mortgages,
Assignments of Mortgage and other documents contained in the Custodian's
Mortgage File relating to one or more of the Mortgage Loans.
18. By
execution of this Custody Agreement, the Custodian warrants that it does not
currently hold, and during the existence of this Custody Agreement shall not
hold, any adverse interest, by way of security or otherwise, in any Mortgage
Loan, and hereby waives and releases any such interest that it may have in
any
Mortgage Loan as of the date hereof. Notwithstanding any other provisions of
this Custody Agreement and without limiting the generality of the foregoing,
the
Custodian shall not at any time exercise or seek to enforce any claim, right
or
remedy, including any statutory or common law rights of set-off, if any, that
the Custodian may otherwise have against all or any part of a Custodian's
Mortgage File, Mortgage Loan or proceeds of either. The Custodian further
represents and warrants to, and covenants that:
11
(a) The
Custodian is (i) a national banking association duly organized, validly existing
and in good standing under the laws of the United States 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 Custody Agreement. Nothing in this
Agreement shall be deemed to impose on the Custodian any duty to qualify to
do
business in any jurisdiction, other
than
(i) any
jurisdiction where any Mortgage Loan is or may be held by the Custodian from
time to time hereunder, 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 it duties
hereunder;
(b) The
execution, delivery and performance of this Custody Agreement have been duly
authorized by all necessary corporate action and the execution and delivery
of
this Custody 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 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 Custody 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; and
(d) This
Custody Agreement, and each Trust Receipt issued hereunder, when executed and
delivered by the Custodian will constitute valid, legal and binding obligations
of the Custodian, enforceable against the Custodian in accordance with their
respective terms, except (i) as the enforcement thereof may be limited by
applicable debtor relief laws and (ii) that certain equitable remedies may
not
be available regardless of whether enforcement is sought in equity or at
law.
(e) Unless
the Custodian notifies the Trustee and the Depositor in writing not less than
thirty (30) days prior to any transfer of the Custodian's Mortgage Files, such
files will be held by the Custodian, in the Custodian’s sole discretion, in the
State of California or the State of Utah.
19. All
demands, notices and communications hereunder shall be in writing and shall
be
deemed to have been duly given when delivered to the other party at the address
shown on the first page hereof, or such other address as may hereafter be
furnished to the other party by like notice.
12
20. Each
authorized representative (an "Authorized Representative") of the Trustee is
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Custody Agreement on behalf
of the Trustee and the specimen signature for each such Authorized
Representative of the Trustee initially authorized hereunder is set forth on
Exhibit Three hereof. From time to time, the Trustee shall deliver to the
Custodian a revised Exhibit Three, reflecting changes in the information
previously given, but the Custodian shall be entitled to rely conclusively
on
the last Exhibit Three received until receipt of a superseding Exhibit Three.
Each Authorized Representative of the Depositor is authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Custody Agreement on behalf of the Depositor
and the specimen signature for each such Authorized Representative of the
Depositor initially authorized hereunder is set forth on Exhibit Four hereof.
From time to time, the Seller shall deliver to the Custodian a revised Exhibit
Four, reflecting changes in the information previously given, but the Custodian
shall be entitled to rely conclusively on the last Exhibit Four received until
receipt of a superseding Exhibit Four. Each Authorized Representative of the
Seller is authorized to give and receive notices, requests and instructions
and
to deliver certificates and documents in connection with this Custody Agreement
on behalf of the Seller and the specimen signature for each such Authorized
Representative of the Seller initially authorized hereunder is set forth on
Exhibit Five hereof. From time to time, the Seller shall deliver to the
Custodian a revised Exhibit Five, reflecting changes in the information
previously given, but the Custodian shall be entitled to rely conclusively
on
the last Exhibit Five received until receipt of a superseding Exhibit Five.
Each
Authorized Representative of the Servicer, Bank of America, National Association
("Bank of America"), is authorized to give and receive notices, requests and
instructions and to deliver certificates and documents in connection with this
Custody Agreement on behalf of Bank of America and the specimen signature for
each such Authorized Representative of Bank of America initially authorized
hereunder is set forth on Exhibit F-2. From time to time, Bank of America shall
deliver to the Custodian a revised Exhibit F-2, reflecting changes in the
information previously given, but the Custodian shall be entitled to rely
conclusively on the last Exhibit F-2 received until receipt of a superseding
Exhibit F-2. Each Authorized Representative of the Servicer, GreenPoint Mortgage
Funding, Inc. ("GreenPoint”), is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Custody Agreement on behalf of GreenPoint and the specimen
signature for each such Authorized Representative of GreenPoint initially
authorized hereunder is set forth on Exhibit Six-GreenPoint. From time to time,
GreenPoint shall deliver to the Custodian a revised Exhibit Six-GreenPoint,
reflecting changes in the information previously given, but the Custodian shall
be entitled to rely conclusively on the last Exhibit Six-GreenPoint received
until receipt of a superseding Exhibit Six-GreenPoint. Each Authorized
Representative of the Servicer, EverHome Mortgage Company (“EverHome”), is
authorized to give and receive notices, requests and instructions and to deliver
certificates and documents in connection with this Custody Agreement on behalf
of EverHome and the specimen signature for each such Authorized Representative
of EverHome initially authorized hereunder is set forth on Exhibit Six-EverHome.
From time to time, EverHome shall deliver to the Custodian a revised Exhibit
Six-EverHome, reflecting changes in the information previously given, but the
Custodian shall be entitled to rely conclusively on the last Exhibit
Six-EverHome received until receipt of a superseding Exhibit Six-EverHome.
Each
Authorized Representative of the Servicer, First Republic Bank (“First
Republic”), is authorized to give and receive notices, requests and instructions
and to deliver certificates and documents in connection with this Custody
Agreement on behalf of First Republic and the specimen signature for each such
Authorized Representative of First Republic initially authorized hereunder
is
set forth on Exhibit Six-First Republic. From time to time, First Republic
shall
deliver to the Custodian a revised Exhibit Six-First Republic, reflecting
changes in the information previously given, but the Custodian shall be entitled
to rely conclusively on the last Exhibit Six-First Republic received until
receipt of a superseding Exhibit Six-First Republic. Each Authorized
Representative of the Servicer, GMAC Mortgage, LLC (successor in interest to
GMAC Mortgage Corporation) (“GMAC”), is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Custody Agreement on behalf of GMAC and the specimen
signature for each such Authorized Representative of GMAC initially authorized
hereunder is set forth on Exhibit Six-GMAC. From time to time, GMAC shall
deliver to the Custodian a revised Exhibit Six-GMAC, reflecting changes in
the
information previously given, but the Custodian shall be entitled to rely
conclusively on the last Exhibit Six-GMAC received until receipt of a
superseding Exhibit Six-GMAC. Each Authorized Representative of the Servicer,
PHH Mortgage Corporation (“PHH”), is authorized to give and receive notices,
requests and instructions and to deliver certificates and documents in
connection with this Custody Agreement on behalf of PHH and the specimen
signature for each such Authorized Representative of PHH initially authorized
hereunder is set forth on Exhibit Six-PHH. From time to time, PHH shall deliver
to the Custodian a revised Exhibit Six-PHH, reflecting changes in the
information previously given, but the Custodian shall be entitled to rely
conclusively on the last Exhibit Six-PHH received until receipt of a superseding
Exhibit Six-PHH. Each Authorized Representative of the Servicer, Xxxxxx Xxxxxxx
Credit Corporation (“Xxxxxx Xxxxxxx”), is authorized to give and receive
notices, requests and instructions and to deliver certificates and documents
in
connection with this Custody Agreement on behalf of Xxxxxx Xxxxxxx and the
specimen signature for each such Authorized Representative of Xxxxxx Xxxxxxx
initially authorized hereunder is set forth on Exhibit Six-Xxxxxx Xxxxxxx.
From
time to time, Xxxxxx Xxxxxxx shall deliver to the Custodian a revised Exhibit
Six-Xxxxxx Xxxxxxx, reflecting changes in the information previously given,
but
the Custodian shall be entitled to rely conclusively on the last Exhibit
Six-Xxxxxx Xxxxxxx received until receipt of a superseding Exhibit Six-Xxxxxx
Xxxxxxx. Each Authorized Representative of the Servicer, Xxxxx Fargo Bank,
N.A.
(“Xxxxx Fargo”), is authorized to give and receive notices, requests and
instructions and to deliver certificates and documents in connection with this
Custody Agreement on behalf of Xxxxx Fargo and the specimen signature for each
such Authorized Representative of Xxxxx Fargo initially authorized hereunder
is
set forth on Exhibit Six-Xxxxx Fargo. From time to time, Xxxxx Fargo shall
deliver to the Custodian a revised Exhibit Six-Xxxxx Fargo, reflecting changes
in the information previously given, but the Custodian shall be entitled to
rely
conclusively on the last Exhibit Six-Xxxxx Fargo received until receipt of
a
superseding Exhibit Six-Xxxxx Fargo. Each Authorized Representative of the
Servicer, ABN AMRO Mortgage Group, Inc. (“ABN AMRO”), is authorized to give and
receive notices, requests and instructions and to deliver certificates and
documents in connection with this Custody Agreement on behalf of ABN AMRO and
the specimen signature for each such Authorized Representative of ABN AMRO
initially authorized hereunder is set forth on Exhibit Six-ABN AMRO. From time
to time, ABN AMRO shall deliver to the Custodian a revised Exhibit Six-ABN
AMRO,
reflecting changes in the information previously given, but the Custodian shall
be entitled to rely conclusively on the last Exhibit Six-ABN AMRO received
until
receipt of a superseding Exhibit Six-ABN AMRO.
13
21. (a) The
Seller shall indemnify, defend, and hold the Custodian and its directors,
officers, agents and employees harmless against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, attorney fees or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against it or them hereunder or
under the Pooling and Servicing Agreement or with respect to any Mortgage Loan,
except for any of the foregoing incurred in connection with, or arising out
of,
the Custodian's willful misfeasance, bad faith or negligence in the performance
of its duties hereunder or by reason of its reckless disregard for its
obligations and duties hereunder. The indemnification provided in this Section
21(a) shall survive the termination of this Custody Agreement and the
resignation or removal of the Custodian hereunder.
14
(b) The
Seller shall indemnify, defend, and hold harmless the Trustee and each of its
directors, officers, employees and agents from and against any and all losses,
liabilities, obligations, damages, penalties, actions, judgments, suits, claims,
costs, expenses (including attorneys’ fees and related expenses), disbursements
or any and all other costs and expenses of any kind or nature whatsoever that
may be incurred in connection with, or arising out of, the selection of Xxxxx
Fargo Bank, N. A. to act as Custodian thereunder. This indemnification provided
in this Section 21(b) shall survive the termination of this Custody Agreement
and the resignation or removal of the Custodian hereunder.
(c) The
Custodian shall indemnify and hold harmless the Seller and the Trustee and
each
of their directors, officers, employees and agents from and against any and
all
loses, liabilities, obligations, damages, penalties, actions, judgments, suits,
claims, costs, expenses (including attorneys' fees and related expenses),
disbursements or any and all other costs and expenses of any kind or nature
whatsoever that may be incurred in connection with, or arising out of, the
Custodian's willful misfeasance, bad faith or negligence in the performance
of
its duties hereunder or by reason of its reckless disregard for its obligations
and duties hereunder. In no event shall the Custodian or its directors,
officers, agents or employees be held liable for any special, indirect or
consequential damages resulting from any action taken or omitted to be taken
by
it or any of them hereunder or in connection herewith even if advised of the
possibility of such damages. This indemnification provided in this Section
21(c)
shall survive the termination of this Custody Agreement and the resignation
or
removal of the Custodian hereunder.
22. The
duties and obligations of the Custodian shall be determined solely by the
express provisions of this Custody Agreement. The Custodian shall not be liable
except for the performance of such duties and obligations as are specifically
set forth in this Custody Agreement or as set forth in a written amendment
to
this Custody Agreement executed by the parties hereto or their successors or
assigns. The Custodian shall not assign, transfer, pledge or grant a security
interest in any of its rights, benefits or privileges hereunder, nor shall
the
Custodian delegate or appoint any other person or entity to perform or carry
out
any of its duties, responsibilities or obligations under this Custody Agreement,
without the prior written consent of the Seller. No representations, warranties,
covenants (other than those expressly made by the Custodian in this Custody
Agreement) or obligations of the Custodian shall be implied with respect to
this
Custody Agreement or the Custodian's services hereunder. Without limiting the
generality of the foregoing, the Custodian:
(a) shall
have no duties or obligations other than those specifically set forth herein
or
as may subsequently be agreed in writing by the parties hereto and shall use
the
same degree of care and skill as is reasonably expected of financial
institutions acting in comparable capacities;
15
(b) 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 Loans, and will not be required
to
and will not make any representations (except as expressly set forth herein)
as
to the validity, value or genuineness of Mortgage Loans;
(c) 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 an indemnity
reasonably acceptable to it;
(d) may
rely
on and shall be protected in acting upon any certificate, instrument, opinion,
notice, letter, telegram or other document, or any security, delivered to it
and
believed by it to be genuine and to have been signed by the proper party or
parties;
(e) may
rely
on and shall be protected in acting upon the written instructions of the
Depositor and such employees and representatives of the Depositor as the
Depositor may hereinafter designate in writing;
(f) may
consult counsel satisfactory to it (including counsel for the Depositor or
the
Trustee) and the advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken, suffered, or
omitted by it hereunder in good faith and in furtherance of its duties
hereunder, in accordance with the advice or opinion of such
counsel;
(g) shall
not
be liable for any error of judgment, or for any act done or step taken or
omitted by it, in good faith, or for any mistake of fact or law, or for anything
that it may do or refrain from doing in connection therewith, except in the
case
of the Custodian's own negligent performance or omission;
(h) may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or through agents or attorneys, provided, however, that the
execution of such trusts or 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 trusts or
powers;
(i) shall
have no duty to ascertain whether or not any cash amount or payment has been
received by the Trustee, the Seller or any third person; and
(j) shall
not
be 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
16
23. For
the
purpose of facilitating the execution of this Custody Agreement and for other
purposes, this Custody Agreement may be executed simultaneously in any number
of
counterparts, each of which shall be deemed to be an original, and together
shall constitute and be one and the same instrument.
24. The
Trustee shall have the right, without the consent of any party, to assign,
in
whole or in part, its interests under this Custody Agreement in all of the
Mortgage Loans subject to the Transaction, and designate any person to exercise
any rights of the Trustee, hereunder, and the assignee or designee shall accede
to the rights and obligations hereunder of the Trustee with respect to such
Mortgage Loans. All references to the Trustee shall be deemed to include its
assignee or designee. In connection with any such assignment, the Custodian
may
require that arrangements reasonably satisfactory to it be made for the exchange
of previously executed and outstanding Trust Receipts for a Trust Receipt
representing such assignment.
17
25. This
Custody Agreement shall terminate upon the earlier of (a) the repurchase of
all
of the Mortgage Loans pursuant to the Pooling and Servicing Agreement, which
repurchase shall be evidenced by a notice from the Trustee to the Custodian
stating that beneficial ownership of the Mortgage Loans has been transferred
to
the Depositor or other purchaser, or (b) the final maturity date of the
Certificates as evidenced by a notice from the Trustee to the Custodian, a
copy
of which notice shall be simultaneously delivered to the Depositor, and delivery
of the Custodian's Mortgage Files pursuant to the Trustee's
instructions.
26. Neither
the failure nor any delay on the part of any party hereto to exercise any right,
remedy, power or privilege under this Custody Agreement shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or any
other right, remedy, power or privilege, nor shall any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of such right, remedy, power or privilege with respect to any other
occurrence. No waiver shall be effective unless it is in writing and is signed
by the party or parties purportedly granting such waiver.
27. The
provisions of this Custody Agreement are independent of and severable from
each
other, and no provision shall be affected or rendered invalid or unenforceable
by virtue of the fact that for any reason any other provision or provisions
may
be invalid or unenforceable in whole or in part.
28. This
Custody Agreement constitutes the entire agreement and understanding of the
parties with respect to the matters and transactions contemplated by this
Custody Agreement and supersedes any prior agreement and understandings with
respect to those matters and transactions.
29. This
Custody 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.
30. This
Custody Agreement and all documents relating thereto, including, without
limitation, (a) consents, waivers and modifications that may hereafter be
executed, (b) documents received by any party at the closing for the
Transaction, and (c) financial statements, certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. Any such reproduction shall be admissible in evidence as the original
itself in any judicial or administrative proceeding, whether or not the original
is in existence and whether or not such reproduction was made by a party in
the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in
evidence.
31. The
Depositor shall deliver to the Custodian written instructions as to the method
of shipment and shipper(s) the Custodian is directed to utilize in connection
with transmission of the Custodian's Mortgage Files in the performance of the
Custodian's duties hereunder prior to any shipment of the Custodian's Mortgage
Files. The Depositor will arrange for the provision of such services at its
sole
cost and expense (or, at the Custodian's option, reimburse the Custodian for
all
costs and expenses incurred by the Custodian consistent with such instructions)
and will maintain such insurance against loss or damage to the Custodian's
Mortgage Files as the Depositor deems appropriate.
18
32. The
exhibits to this Custody Agreement are hereby incorporated and made a part
hereof and are an integral part of this Custody Agreement.
33. For
purposes of this Custody Agreement, except as otherwise expressly provided
or
unless the context otherwise requires:
(a) the
terms
defined in this Custody Agreement have the meanings assigned to them in this
Custody Agreement and the Pooling and Servicing Agreement and include the plural
as well as the singular, and the use of any gender herein shall be deemed to
include the other gender;
(b) accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles;
(c) references
herein to "Articles", "Sections", "Subsections", "Paragraphs", and other
subdivisions without reference to a document are to designated Articles,
Sections, Subsections, Paragraphs and other subdivisions of this Custody
Agreement;
(d) a
reference to a Subsection without further reference to a Section is a reference
to such Subsection as contained in the same Section in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the
words
"herein", "hereof", "hereunder" and other words of similar import refer to
this
Custody Agreement as a whole and not to any particular provision;
and
(f) the
term
"include" or "including" shall mean without limitation by reason of
enumeration.
34. Notwithstanding
anything in this Custody Agreement to the contrary, the Custodian, in its
capacity as custodian hereunder, shall not, prior to the date which is one
year
and one day after the termination of this Custody Agreement with respect to
the
Depositor or the Trustee, acquiesce, petition or otherwise invoke or cause
the
Depositor or the Trustee (or any assignee) to invoke the process of the court
or
governmental authority for the purpose of commencing or sustaining a case
against the Depositor or the Trustee under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Depositor
or
the Trustee or any substantial part of its property or ordering the winding
up
or liquidation of the affairs of the Depositor or the Trustee.
[Signature
Page to Follow]
19
IN
WITNESS WHEREOF, the Depositor, the Seller, the Trustee and the Custodian have
caused their names to be signed hereto by their respective officers thereunto
duly authorized, all as of the date first written above.
|
SEQUOIA RESIDENTIAL FUNDING, INC.
as Depositor
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |
|
Name: Xxxx X. Xxxxxxxxxxx |
||
| Title: Vice President | ||
|
RWT HOLDINGS, INC.,
as Seller
|
||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxxxxx | |
|
Name: Xxxx X. Xxxxxxxxxxx |
||
| Title: Vice President | ||
|
HSBC
BANK USA, NATIONAL ASSOCIATION, as
Trustee |
||
| |
|
|
| By: | /s/ Xxxxx Xxxxx | |
|
Name: Xxxxx Xxxxx |
||
| Title: Assistant Vice President | ||
|
XXXXX
FARGO BANK,
NATIONAL
ASSOCIATION, as Custodian
|
||
| |
|
|
| By: | /s/ Xxxxxx X. Xxxxxxx | |
|
Name: Xxxxxx X. Xxxxxxx |
||
|
Title:
Vice President
|
||
20
EXHIBIT
ONE-A
INITIAL
TRUST RECEIPT
SEQUOIA
MORTGAGE TRUST 2007-3
July
__,
2007
| To: |
HSBC
Bank USA, National Association, as Trustee
|
under
a
Pooling and Servicing Agreement, dated as of July 1, 2007, relating to
Reference
is made to the Custody Agreement among Sequoia Residential Funding, Inc. (the
"Depositor"), RWT Holdings, Inc. (the "Seller"), Xxxxx Fargo Bank, N. A., as
Custodian (the "Custodian"), and HSBC Bank USA, National Association, as Trustee
(the "Trustee"), dated as of July 1, 2007 (the "Custody Agreement"), pursuant
to
which the Depositor has delivered to the Custodian, with respect to each
Mortgage Loan set forth on Schedule A hereto (the "Mortgage Loan Schedule"),
the
documents set forth in Section 2 of the Custody Agreement.
With
respect to each Mortgage Loan listed on the Mortgage Loan Schedule and except
as
otherwise noted on the Schedule of Exceptions set forth on Schedule B hereto,
the Custodian confirms that (1) the Custodian has received all of the documents
required to be delivered to the Custodian pursuant to Paragraph 2(A)(i)-(iii),
(vi) and (vii), 2(B) and 2(C) of the Custody Agreement, (2) the Custodian has
reviewed each Custodian's Mortgage File in accordance with Section 4A of the
Custody Agreement, and the documents contained in each Custodian's Mortgage
File
conform to the requirements set forth in Section 4A of the Custody Agreement,
and (3) the Custodian has physical possession of the documents in each
Custodian's Mortgage File and will continue to hold each Custodian's Mortgage
File as bailee of and agent for, and for the sole and exclusive use and benefit
of, the Trustee, until the Trustee directs the Custodian to the contrary in
accordance with the Custody Agreement. The Custodian has not independently
verified the validity, enforceability, sufficiency or genuineness of any
document in any Custodian’s Mortgage File or any related Mortgage Loan, nor the
collectibility, insurability, effectiveness or suitability of any related
Mortgage Loan.
All
terms
used herein and not otherwise defined herein shall have the respective meaning
ascribed to such term in the Custody Agreement.
|
XXXXX
FARGO BANK,
N.
A., as Custodian
|
|||
|
|
|||
| By: | |||
|
|
|||
| Name: | |||
|
|
|||
| Title: | |||
|
|
|||
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
SCHEDULE
B
SCHEDULE
OF EXCEPTIONS
EXHIBIT
ONE-B
FINAL
TRUST RECEIPT
[Date],
2007
| To: |
HSBC
BANK USA, NATIONAL ASSOCIATION,
|
as
Trustee under a Pooling and Servicing Agreement, dated as of July 1, 2007,
relating to Sequoia Mortgage Trust 2007-3
Reference
is made to the Custody Agreement among Sequoia Residential Funding, Inc. (the
"Depositor"), RWT Holdings, Inc. (the "Seller"), Xxxxx Fargo Bank, N. A., as
custodian (the "Custodian") and HSBC Bank USA, National Association, as Trustee,
dated as of July
1,
2007
(the
"Custody Agreement"), pursuant to which the Depositor has delivered to the
Custodian, with respect to each Mortgage Loan set forth on Schedule A hereto
(the "Mortgage Loan Schedule"), the documents set forth in Section 2 of the
Custody Agreement.
With
respect to each Mortgage Loan listed on the Mortgage Loan Schedule and except
as
otherwise noted on the Schedule of Exceptions set forth on Schedule B hereto,
the Custodian confirms that (1) the Custodian has received all of the documents
required to be delivered to the Custodian pursuant to Paragraph 2(A)(i)-(iii),
(vi) and (vii), 2(B) and 2(C) of the Custody Agreement, (2) the Custodian has
reviewed each Custodian's Mortgage File in accordance with Section 4A and 4B
of
the Custody Agreement, and the documents contained in each Custodian's Mortgage
File conform to the requirements set forth in Section 4A and 4B of the Custody
Agreement, and (3) the Custodian has physical possession of the documents in
each Custodian's Mortgage File and will continue to hold each Custodian's
Mortgage File as bailee of and agent for, and for the sole and exclusive use
and
benefit of, the Trustee, until the Trustee directs the Custodian to the contrary
in accordance with the Custody Agreement. The Custodian has not independently
verified the validity, enforceability, sufficiency or genuineness of any
document in any Custodian’s Mortgage File or any related Mortgage Loan, nor the
collectibility, insurability, effectiveness or suitability of any related
Mortgage Loan.
All
terms
used herein and not otherwise defined herein shall have the respective meaning
ascribed to such term in the Custody Agreement.
|
XXXXX
FARGO BANK,
N.
A., as Custodian
|
|||
|
|
|||
| By: | |||
|
|
|||
| Name: | |||
|
|
|||
| Title: | |||
|
|
|||
SCHEDULE
A
MORTGAGE
LOAN SCHEDULE
SCHEDULE
B
SCHEDULE
OF EXCEPTIONS
EXHIBIT
TWO
REQUEST
FOR RELEASE OF DOCUMENTS
| To: |
XXXXX
FARGO BANK, N. A., as Custodian
|
00
Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attn:
Mortgage Document Custody
|
Re:
|
Custody
Agreement (the "Agreement"), dated as of July
1, 2007,
among Sequoia Residential Funding, Inc., as Depositor, RWT Holdings,
Inc.,
as Seller, Xxxxx Fargo Bank, N. A., as Custodian, and HSBC Bank USA,
National Association, as Trustee
|
In
connection with the administration of the Mortgage Loans held by you as
Custodian for the Trustee pursuant to the Agreement, we request the release,
and
hereby acknowledge receipt, of the Custodian's Mortgage File for the Mortgage
Loan described below, for the reason indicated.
Mortgage
Loan Number:
Mortgagor
Name, Address & Zip Code:
Reason
for Requesting Documents (check one)
___ 1. Mortgage
Paid in Full
___ 2. Foreclosure
___ 3. Substitution
___ 4. Other
Liquidation (Repurchases, etc.)
___ 5. Nonliquidation
|
Reason:
|
Address
to which Custodian should
Deliver
the Custodian's Mortgage File:
| __________________________________________ | |||
| __________________________________________ | |||
| __________________________________________ | |||
| By: | |||
|
(authorized
signer)
|
|||
| Issuer: | |||
|
|
|||
| Address | |||
|
|
|||
| Date: | |||
|
|
|||
Custodian
Xxxxx
Fargo Bank, N.A.
Please
acknowledge the execution of the above request by your signature and date
below:
|
Signature |
Date
|
Custodian's
Mortgage File returned to Custodian:
|
Custodian
|
Date
|
EXHIBIT
THREE
AUTHORIZED
OFFICERS OF THE TRUSTEE
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
FOUR
AUTHORIZED
OFFICERS OF THE DEPOSITOR
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
FIVE
AUTHORIZED
OFFICERS OF THE SELLER
RWT
HOLDINGS, INC.
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
F-2
AUTHORIZED
OFFICERS OF THE SERVICER
BANK
OF AMERICA
Please
see attached
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-GREENPOINT
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-EVERHOME
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-FIRST REPUBLIC BANK
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-GMAC
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-PHH MORTGAGE
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-XXXXXX XXXXXXX
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-XXXXX FARGO
AUTHORIZED
OFFICERS OF THE SERVICER
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SIX-ABN AMRO
AUTHORIZED
OFFICERS OF THE SERVICER
Please
see attached
|
Name
|
Specimen
Signature
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
| __________________________________ |
___________________________________
|
|
EXHIBIT
SEVEN
FORM
OF
CERTIFICATION REGARDING SERVICING CRITERIA TO BE
ADDRESSED
IN REPORT ON ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address, at
a
minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|
||
|
|
General
Servicing Considerations
|
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
|||
|
|
Cash
Collection and Administration
|
|||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
|||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
|||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
|||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
|||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
|||
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
|
Investor
Remittances and Reporting
|
|||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|||
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|||
|
|
Pool
Asset Administration
|
|||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
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.
|
|||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
|||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage loans
(e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|||
|
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).
|
|||
|
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.
|
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
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.
|
|||
|
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.
|
|||
|
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.
|
|||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
[NAME
OF CUSTODIAN],
|
|||
|
|
|||
| Date: |
|
||
|
|
|||
| By: | |||
|
Name:
|
|||
| Title: | |||
