Exhibit 99.5
EXECUTION COPY
CUSTODIAL AGREEMENT
THE CUSTODIAL AGREEMENT, dated as of March 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, American Home Mortgage Corp., having an address at 000 Xxxxxxxxxxx Xxxx,
Xxxxxxxx, Xxx Xxxx 00000 ("American Home", a "Seller"), American Home Mortgage
Servicing, Inc., having an address at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx
00000 ("American Home Servicing", a "Servicer"), The Hemisphere National Bank,
having an address at 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000
("Hemisphere", a "Servicer" and a "Seller"), HSBC Mortgage Corporation (USA),
having an address at 0000 Xxxxxx Xxx, Xxxxx, Xxx Xxxx 00000 ("HSBC", a "Seller"
and a "Servicer"), Xxxxxx Xxxxxxx Credit Corporation (formerly known as Xxxxxx
Xxxxxxx Xxxx Xxxxxx Credit Corporation), having an address at 0000 Xxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000 ("MSCC", a "Servicer" and a "Seller"), 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 Mortgage Loan Sale and
Servicing Agreement, dated as of January 1, 2006 between American Home, American
Home Servicing and the Purchaser, (ii) a Mortgage Loan Sale and Servicing
Agreement, dated as of December 1, 2005 between Hemisphere and the Purchaser,
(iii) a Mortgage Loan Sale and Servicing Agreement, dated as of August 1, 2005
between HSBC and the Purchaser, (iv) a Third Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005 between MSCC and
the Purchaser and an Amended and Restated Master Servicing Agreement, dated as
of February 1, 2004 between MSCC and the Purchaser, and (v) 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 November 22, 2005 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 March 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 2006-5AR (the
"Trust") pursuant to the Pooling and Servicing Agreement dated March 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 March 31, 2006 (the "Closing Date"),
American Home and American Home Servicing shall deliver and release to the
Custodian the documents identified on Schedule 1-A, Hemisphere shall deliver and
release to the Custodian the documents identified on Schedule 1-B, HSBC shall
deliver and release to the Custodian the documents identified on Schedule 1-C,
MSCC shall deliver and release to the Custodian the documents identified on
Schedule 1-D and Wachovia shall deliver and release to the Custodian the
documents identified on Schedule 1-E, 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.
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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
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 March 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):
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(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,
(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
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(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 A, Schedule B, Schedule
C, Schedule D or Schedule E hereto, respectively, 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 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
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(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 June 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 April 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 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.
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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 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
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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 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
--------------------------------------- -----------------------------------
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.
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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 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.
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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 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]
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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 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
11
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
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;
12
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
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
13
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 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.
14
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.
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
15
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 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/ Xxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Director
AMERICAN HOME MORTGAGE CORP.
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
General Counsel and Secretary
AMERICAN HOME MORTGAGE SERVICING, INC.
By: /s/ Xxxx X. Xxxx
---------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
General Counsel and Secretary
THE HEMISPHERE NATIONAL BANK
By: /s/ Xxxxx Xxxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxxx
Title: President
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Managing Director
HSBC MORTGAGE CORPORATION (USA),
as Seller and Servicer
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxxxxxx
Title: First Vice President
WACHOVIA MORTGAGE CORPORATION,
as Seller and Servicer
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
X.X. XXXXXX TRUST COMPANY, NATIONAL
ASSOCIATION
as Custodian
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant Vice President
LASALLE BANK NATIONAL
ASSOCIATION,
as Trustee of Xxxxxx Xxxxxxx Mortgage
Loan Trust 2006-5AR
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: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION,
as Securities Administrator
By: /s/ Xxxxxxxx Xxxxx
----------------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
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 American Home:
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
with a copy to:
Xxxxx Xxxxxxxx
American Home Mortgage Servicing, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(4) If to Hemisphere:
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, Esq.
(5) If to HSBC:
HSBC Mortgage Corporation (USA)
0000 Xxxxxx Xxx
Xxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
(6) 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 2006-5AR
(8) If to the Master Servicer or the Securities Administrator:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager, MSM 2006-5AR
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 2006-5AR
Re: The Custodial Agreement, dated as of March 1, 2006, among
Xxxxxx Xxxxxxx Mortgage Capital Inc., as the Purchaser,
American Home Mortgage Corp., American Home Mortgage
Servicing, Inc., The Hemisphere National Bank, HSBC Mortgage
Corporation (USA), Xxxxxx Xxxxxxx Credit Corp. 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 2006-5AR
Re: The Custodial Agreement, dated as of March 1, 2006, among Xxxxxx
Xxxxxxx Mortgage Capital Inc., as the Purchaser, American Home
Mortgage Corp., American Home Mortgage Servicing, Inc., The
Hemisphere National Bank, HSBC Mortgage Corporation (USA),
Xxxxxx Xxxxxxx Credit Corp. 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) (i) 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 March 1, 2006, among Xxxxxx Xxxxxxx
Mortgage Capital Inc., as the Purchaser, American Home Mortgage Corp., American
Home Mortgage Servicing, Inc., The Hemisphere National Bank, HSBC Mortgage
Corporation (USA), Xxxxxx Xxxxxxx Credit Corp. 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 March 1, 2006,
among Xxxxxx Xxxxxxx Mortgage Capital Inc., as the Purchaser, American Home
Mortgage Corp., American Home Mortgage Servicing Inc., The Hemisphere National
Bank, HSBC Mortgage Corporation (USA) Xxxxxx Xxxxxxx Credit Corporation 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
-------------------- ----------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
-------------------- ----------------------
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
1122(d)(1)(ii) such servicing activities.
-------------------- ----------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained.
-------------------- ----------------------
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
1122(d)(1)(iv) terms of the transaction agreements.
-------------------- ----------------------
Cash Collection and Administration
-------------------- ----------------------
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
1122(d)(2)(i) in the transaction agreements.
-------------------- ----------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
1122(d)(2)(ii) personnel.
-------------------- ----------------------
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
1122(d)(2)(iii) approved as specified in the transaction agreements.
-------------------- ----------------------
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
1122(d)(2)(iv) transaction agreements.
-------------------- ----------------------
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
1122(d)(2)(v) 13k-1(b)(1) of the Securities Exchange Act.
-------------------- ----------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access.
-------------------- ----------------------
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
1122(d)(2)(vii) agreements.
-------------------- ----------------------
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APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------- ----------------------
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
1122(d)(3)(i) serviced by the Servicer.
-------------------- ----------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
1122(d)(3)(ii) 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
1122(d)(3)(iii) other number of days specified in the transaction 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.
-------------------- ----------------------
Pool Asset Administration
-------------------- ----------------------
Collateral or security on mortgage loans is maintained as
required X by the transaction agreements or related
1122(d)(4)(i) mortgage loan documents. X
-------------------- ----------------------
Mortgage loan and related documents are safeguarded as required by
1122(d)(4)(ii) the transaction agreements X
-------------------- ----------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
-------------------- ----------------------
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
1122(d)(4)(iv) mortgage loan documents.
-------------------- ----------------------
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
-------------------- ----------------------
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
1122(d)(4)(vi) and related pool asset documents.
-------------------- ----------------------
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
1122(d)(4)(vii) transaction agreements.
-------------------- ----------------------
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
1122(d)(4)(viii) unemployment).
-------------------- ----------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
-------------------- ----------------------
-----------------------------------------------------------------------------------------------------------------
APPLICABLE SERVICING
SERVICING CRITERIA CRITERIA
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
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
1122(d)(4)(x) transaction agreements.
-------------------- ----------------------
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
1122(d)(4)(xi) agreements.
-------------------- ----------------------
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
1122(d)(4)(xii) omission.
-------------------- ----------------------
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
1122(d)(4)(xiii) specified in the transaction agreements.
-------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the
1122(d)(4)(xiv) 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.
-------------------- --------------------------------------------------------------------- ----------------------
SCHEDULE 1-A
LIST OF DOCUMENTS FOR AMERICAN HOME
With respect to each Mortgage Loan, the Mortgage Loan
Documents shall include each of the following items, which shall be available
for inspection by the Purchaser and any prospective Purchaser, and which shall
be delivered to the Custodian, or to such other Person as the Purchaser shall
designate in writing:
(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 and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii) the
stock certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the Mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; 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 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 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-C
LIST OF DOCUMENTS FOR HSBC
With respect to each Mortgage Loan set forth on a related
Mortgage Loan Schedule, the Seller shall deliver and release to the Purchaser
the following documents:
1. the original Mortgage Note bearing all intervening
endorsements necessary to show a complete chain of endorsements from the
original payee to the Seller, endorsed , as follows, "Pay to the order of Xxxxxx
Xxxxxxx Mortgage Capital Inc., without recourse", and, if previously endorsed,
signed in the name of the last endorsee by a duly qualified officer of the last
endorsee. If the Mortgage Loan was acquired by the last endorsee in a merger,
the endorsement must be by "[name of 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 "[name of last endorsee], formerly known as [previous name]";
If the Seller uses facsimile signatures to endorse Mortgage
Notes, the Seller must provide in an Officer's Certificate
that the endorsement is valid and enforceable in the
jurisdiction(s) in which the Mortgaged Properties are located
and must retain in its corporate records the following
specific documentation authorizing the use of facsimile
signatures: (i) a resolution from its board of directors
authorizing specific officers to use facsimile signatures;
stating that facsimile signatures will be a valid and binding
act on the Seller's part; and authorizing the Seller's
corporate secretary to certify the validity of the resolution,
the names of the officers authorized to execute documents by
using facsimile signatures, and the authenticity of specimen
forms of facsimile signatures; (ii) the corporate secretary's
certification of the authenticity and validity of the board of
directors' resolution; and (iii) a notarized "certification of
facsimile signature," which includes both the facsimile and
the original signatures of the signing officer(s) and each
officer's certification that the facsimile is a true and
correct copy of his or her original signature.
2. With respect to Mortgage Loans that are not Co-op Loans,
the original or a certified true copy of the Assignment of Mortgage for each
Mortgage Loan, in form and substance acceptable for recording unless the
Mortgage Loan is a MERS Designated Mortgage Loan or has been previously assigned
to MERS. The Mortgage shall be assigned, with assignee's name to Xxxxxx Xxxxxxx
Mortgage Capital Inc. If the Mortgage Loan was acquired by the last assignee in
a merger, the Assignment of Mortgage must be made by "[name of last assignee],
successor by merger to [name of predecessor]". If the Mortgage Loan was acquired
or originated by the last assignee while doing business under another name, the
Assignment of Mortgage must be by "[name of last assignee], formerly known as
[previous name]";
3. the original or a certified true copy of any guarantee
executed in connection with the Mortgage Note, if any;
4. With respect to Mortgage Loans that are not Co-op Loans the
original or a certified true copy of the Mortgage with evidence of recording
thereon With respect to any Co-op Loan, an original or a certified true copy of
the Security Agreement. If in connection with any Mortgage Loan, the Seller
cannot deliver or cause to be delivered the original Mortgage or a certified
true copy of the Mortgage with evidence of recording thereon has not been
returned by the public recording office where such Mortgage has been delivered
for recordation or such Mortgage has been lost or such public recording office
retains the original recorded Mortgage, a photocopy of such Mortgage, certified
by the Seller to be the true and complete copy of the original mortgage
submitted for recordation together with (i) in the case of a delay caused by the
public recording office, an Officer's Certificate (which may be a blanket
Officer's Certificate with respect to all affected Mortgage Loans sold by the
Seller) of the Seller insuring the Mortgage stating that such Mortgage has been
delivered 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
party delivering the Officer's Certificate or 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 with the recording information thereon
certified by such public recording office to be a true and complete copy of the
original recorded Mortgage;
5. original or a certified true copies of all assumption,
modification, consolidation or extension agreements, with evidence of recording
thereon, if any;
6. With respect to Mortgage Loans that are not Co-op Loans,
the original or a certified true copies of all intervening Assignments of
Mortgage with evidence of recording thereon evidencing a complete chain of
ownership from the originator of the Mortgage Loan to the last assignee, or if
any such intervening Assignment of Mortgage has not been returned from the
applicable public recording office or has been lost or if such public recording
office retains the original recorded intervening Assignments of Mortgage, a
photocopy of such intervening Assignment of Mortgage, certified by the Seller to
be the true and complete copy of the original mortgage submitted for recordation
together with (i) in the case of a delay caused by the public recording office,
an Officer's Certificate (which may be a blanket Officer's Certificate with
respect to all affected Mortgage Loans sold by the Seller) of the Seller
insuring the Mortgage stating that such intervening Assignment of Mortgage has
been delivered 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 party delivering the Officer's Certificate or by the Seller; or
(ii) in the case of an intervening Assignment of Mortgage where a public
recording office retains the original recorded intervening Assignment of
Mortgage or in the case where an intervening Assignment of Mortgage is lost
after recordation in a public recording office, a copy of such intervening
Assignment of Mortgage with recording information thereon certified by such
public recording office to be a true and complete copy of the original recorded
intervening Assignment of Mortgage;
7. if the Mortgage Note, the Mortgage, any Assignment of
Mortgage, or any other related document has been signed by a Person on behalf of
the Mortgagor, a certified copy of the power of attorney or other instrument
that authorized and empowered such Person to sign;
8. With respect to Mortgage Loans that are not Co-op Loans,
the original (which may include a computer-generated signature) or a certified
true copy of the lender's title insurance policy in the form of an ALTA mortgage
title insurance policy, containing each of the endorsements required by FNMA and
insuring the Purchaser and its successors and assigns as to the first priority
lien of the Mortgage in the original principal amount of the Mortgage Loan or,
if the original lender's title insurance policy has not been issued, the
irrevocable commitment to issue the same; the original or a certified true copy
of any security agreement, chattel mortgage or equivalent document executed in
connection with the Mortgage, if any. In addition, the Purchaser will accept a
short-form title insurance policy which, by nature of the conditions and
stipulations of the title policy will include all FNMA and FHLMC requirements
for endorsements; and
9. with respect to any Co-op Loan: (i) a copy of the Co-op
Lease and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii) the
stock certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; 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 an executed UCC-3 assignment of such security interest by the
Seller in a form sufficient for filing.
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 and (iii) specify the approximate 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 (iii) above may be requested from the Purchaser, which consent shall
not be unreasonably withheld.
SCHEDULE 1-D
LIST OF DOCUMENTS FOR XXXXXX XXXXXXX CREDIT CORP.
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of __________, without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
officer. Any endorsement may be contained on an allonge, 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;
(d) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of recording
thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans,
the original Assignment of Mortgage for each Mortgage Loan (or, in lieu of an
original signature page of the Assignment of Mortgage, a facsimile or a Portable
Document Format (PDF) copy thereof), in form and substance acceptable for
recording (except with respect to MERS Designated Mortgage Loans). The
Assignment of Mortgage shall be delivered in blank. If the Mortgage Loan was
acquired by the Seller in a merger, the Assignment of Mortgage must be made by
"[Seller], successor by merger to [name of predecessor]". If the Mortgage Loan
was acquired or originated by the Seller while doing business under another
name, the Assignment of Mortgage must be by "[Seller], formerly known as
[previous name]". With respect to any Co-op Loan, an original or copy of the
assignment of the Security Agreement endorsed in blank, together with all
intervening assignments thereof;
(f) with respect to Mortgage Loans that are not Co-op Loans,
the originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Mortgage Loan, MERS) with evidence of recording
thereon;
(g) with respect to Mortgage Loans that are not Co-op Loans,
the original mortgagee policy of title insurance or, in the event such original
title policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title insurance
company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage; and
(i) with respect to any Co-op Loan: (i) a copy of the Co-op
Lease and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii) the
stock certificate together with an undated stock power relating to such stock
certificate executed in blank; (iii) the recognition agreement of the interests
of the mortgagee with respect to the Co-op Loan by the residential cooperative
housing corporation, the stock of which was pledged by the related Mortgagor to
the originator of such Co-op Loan; (iv) copies of the financing statement filed
by the originator as secured party and, if applicable, a filed UCC-3 Assignment
of the subject security interest showing a complete chain of title, together
with an executed UCC-3 Assignment of such security interest by the Seller; and
(j) if any of the above documents has been executed by a
person holding a power of attorney, an original or photocopy of such power
certified by the Seller to be a true and correct copy of the original.
SCHEDULE 1-E
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.
