EXHIBIT 99.6
Exhibit 99.6
EXECUTION COPY
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CWHEQ Revolving Home Equity Loan Trust,
Series 2007-A
Issuer
Countrywide Home Loans, Inc.
Master Servicer
The Bank of New York.
Indenture Trustee
Treasury Bank, a Division of
Countrywide Bank, N.A.
Custodian
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Custodial Agreement
Dated as of January 31, 2007
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Table of Contents
Page
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Section 1. Defined Terms and Rules of Construction......................1
Section 2. Acknowledgment of Receipt and Certification;
Appointment as Custodian.....................................2
Section 3. Maintenance of Office........................................4
Section 4. Duties of Custodian..........................................4
Section 5. Access to Records............................................5
Section 6. Instructions; Authority to Act...............................5
Section 7. Advice of Counsel............................................5
Section 8. Representations and Warranties...............................5
Section 9. Effective Period, Termination, and Amendment, and
Interpretive and Additional Provisions.......................6
Section 10. Limitation of Liability......................................6
Section 11. Governing Law................................................8
Section 12. Amendment....................................................8
Section 13. Notices......................................................8
Section 14. Binding Effect...............................................8
Section 15. Counterparts.................................................9
Section 16. Severability of Provisions...................................9
Section 17. Third Party Beneficiary......................................9
Section 18. Merger of Custodian..........................................9
Section 19. Indemnification..............................................9
Section 20. Dispute Resolution, Arbitration.............................10
Section 21. Limitation of Liability.....................................10
EXHIBIT A Form of Custodian's Initial Certification
EXHIBIT B Form of Custodian's Delay Delivery Certification
EXHIBIT C Form of Custodian's Final Certification
EXHIBIT D Form of Custodian's Further Final Certification
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Custodial Agreement
This Custodial Agreement, dated as of January 31, 2007 (this
"Agreement"), among CWHEQ, Inc. (the "Depositor"), Countrywide Home Loans,
Inc., as master servicer (the "Master Servicer"), CWHEQ Revolving Home Equity
Loan Trust, Series 2007-A (the "Issuer"), and Treasury Bank, a Division of
Countrywide Bank, N.A., as agent, custodian, and bailee for the Owner Trustee
as owner and the Indenture Trustee as secured party (when acting for the
Issuer, the "Trust Custodian," and when acting for the Indenture Trustee, the
"Indenture Custodian," and when referring to both capacities, the
"Custodian"), and The Bank of New York, as indenture trustee (in that capacity
the "Indenture Trustee"),
Witnesseth:
Whereas, the Depositor will sell all of its interest in the Mortgage
Loans to the Issuer pursuant to the Sale and Servicing Agreement; and
Whereas, the Issuer will Grant a Security Interest to the Indenture
Trustee for the benefit of the Noteholders and the Credit Enhancer in all of
the Issuer's interest in the Collateral; and
Whereas, the Issuer wants to hold its assets through a custodian acting
as its agent and bailee under a custodial agreement, and authorize the
custodian to deliver the Collateral to the Indenture Trustee; and
Whereas, the Indenture Trustee wants to hold the Collateral through a
custodian acting as its agent and bailee under a custodial agreement in
connection with the Issuer's delivery of the Collateral to the Indenture
Trustee;
Now, Therefore, the parties agree as follows.
Section 1. Defined Terms and Rules of Construction.
Capitalized terms used but not otherwise defined in this Agreement have
the meanings given to them in the Master Glossary of Defined Terms. In
addition, Section 1.04 (Rules of Construction) of the Indenture is
incorporated by reference with appropriate substitution of this Agreement for
references in that Section to the Indenture so that the language of that
Section will read appropriately as applying to this Agreement.
Section 2. Acknowledgment of Receipt and Certification; Appointment as
Custodian.
(a) Appointment as Custodian; Acknowledgment of Receipt.
The Issuer appoints the Trust Custodian to act as its agent, custodian,
and bailee to accept delivery of the items transferred to it under the Sale
and Servicing Agreement and to hold them for the Issuer, and deliver any of
them to the Indenture Trustee as called for under the Indenture. The Indenture
Trustee appoints the Indenture Custodian to act as its agent, custodian, and
bailee to maintain custody of the Mortgage Files for the Indenture Trustee for
the benefit of the Noteholders and the Credit Enhancer. Treasury Bank, a
division of Countrywide Bank, N.A. accepts both of these appointments. The
Trust Custodian will maintain custody of the items transferred to it under the
Sale and Servicing Agreement that are not delivered to the Indenture Trustee
subject to instructions from the Issuer. The Indenture Custodian will maintain
continuous custody of the Mortgage Files at its office identified in Section 3
until (i) the Indenture Trustee delivers to the Indenture Custodian an
Officer's Certificate to the effect that the conditions for the release of
Collateral have been satisfied or (ii) the conditions specified in Section
4(b) for the release of the Mortgage Files to the Master Servicer have been
met. In performing its duties under this Agreement, the Custodian agrees to
act with the degree of care and skill consistent with the degree of care and
skill that the Custodian exercises with respect to the loan files relating to
similar loans owned, serviced, or held as custodian by the Custodian, and the
Custodian agrees to follow its customary policies and procedures.
(b) Review and Certification.
In connection with the transfers under Sections 2.01(a) and 2.01(b) of
the Sale and Servicing Agreement by the Depositor, the Depositor is required
to effect certain deliveries to the Issuer and the Indenture Trustee under
Section 2.01(d) of the Sale and Servicing Agreement. The Trust Custodian shall
accept those deliveries for the Issuer, and shall make the deliveries to the
Indenture Trustee required of the Issuer. The Indenture Custodian acting as
custodian for the Indenture Trustee shall accept those deliveries.
On the Closing Date, the Custodian will execute and deliver to the
Depositor, the Master Servicer, and the Sponsor (with a copy to the Issuer,
the Indenture Trustee, and the Credit Enhancer) an Initial Certification in
the form of Exhibit A. Based on its review and examination, the Custodian will
acknowledge that the documents identified in the Initial Certification appear
regular on their face (i.e. are not mutilated, damaged, defaced, torn, or
otherwise physically altered) and relate to each Mortgage Loan. No later than
thirty-two days after the Closing Date, if Mortgage Loans have been delivered
after the Closing Date pursuant to Section 2.01(d) of the Sale and Servicing
Agreement, the Custodian will execute and deliver to the Depositor, the Master
Servicer, and the Sponsor (with a copy to the Issuer, the Indenture Trustee,
and the Credit Enhancer) a Delay Delivery Certification in the form of Exhibit
B. Based on its review and examination, the Custodian will acknowledge that
the documents identified in the Delay Delivery Certification appear regular on
their face (i.e. are not mutilated, damaged,
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defaced, torn, or otherwise physically altered) and relate to each Mortgage
Loan.
Not later than 180 days after the Closing Date, the Custodian will
deliver to the Depositor, the Master Servicer, and the Sponsor (with a copy to
the Issuer, the Indenture Trustee, and the Credit Enhancer) a Final
Certification in the form of Exhibit C, noting any applicable exceptions. For
the purpose of the Final Certification, the title policy required for the
Mortgage File is any of the final original title policy, a signed binder or
commitment for a title policy, or a preliminary title report (in those states
in which preliminary title reports are the customary form of title policy
commitment). For any Mortgage File whose Final Certification is based on a
signed binder or commitment for a title policy or a preliminary title report
(in those states in which preliminary title reports are the customary form of
title policy commitment), the Custodian will deliver to the Depositor, the
Master Servicer, and the Sponsor (with a copy to the Issuer, the Indenture
Trustee, and the Credit Enhancer), not later than the one year anniversary of
the Closing Date, a further Final Certification in the form of Exhibit D,
noting any applicable exceptions. For the purpose of this further Final
Certification, the title policy required for the Mortgage File must be the
final original title policy.
If, in the course of its review in connection with the Final
Certification, the Custodian finds any document constituting a part of a
Mortgage File that does not meet the requirements of Section 2.02 of the Sale
and Servicing Agreement, the Custodian shall list the defect as an exception
in the Final Certification.
The Custodian is not obligated to examine the documents delivered to it
to determine that they are genuine, enforceable, or appropriate for the
represented purpose, or that they have actually been recorded in the real
estate records, or that they are other than what they purport to be on their
face.
In reviewing any Mortgage File pursuant to this Section, the Custodian is
not responsible for determining whether any document is valid and binding,
whether the text of any assignment or endorsement is in proper or recordable
form (except, if applicable, to determine if the Issuer or the Indenture
Trustee is the assignee or endorsee), whether any document has been recorded
in accordance with the requirements of any applicable jurisdiction, or whether
a blanket assignment is permitted in any applicable jurisdiction, whether any
person executing any document is authorized to do so or whether any signature
on any document is genuine, but shall only be required to determine whether a
document has been executed, that it appears to be what it purports to be, and,
where applicable, that it purports to be recorded.
The Sponsor will deliver and the Indenture Custodian will maintain
continuous custody at its office identified in Section 3 of the documents
required to be held by the Indenture Trustee in accordance with Section 2.01
of the Sale and Servicing Agreement with respect to any Eligible Substitute
Mortgage Loans.
The Master Servicer shall promptly deliver to the Indenture Custodian,
and the Indenture Custodian will maintain continuous custody at its office
identified in Section
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3 of the originals of any other documents constituting the Mortgage File that
come into the possession of the Master Servicer from time to time.
Section 3. Maintenance of Office.
The Custodian agrees to maintain the items for which it acts as Trust
Custodian or Indenture Custodian at the Indenture Custodian's facilities.
Section 4. Duties of Custodian.
(a) Safekeeping. The Indenture Custodian shall (i) segregate the Mortgage
Files from all other documents in the Indenture Custodian's possession; (ii)
identify the Mortgage Files as being held, and hold the Mortgage Files, for
the Indenture Trustee as secured party for the benefit of all present and
future Noteholders and the Credit Enhancer; (iii) maintain at all times a
current inventory of the Mortgage Files; and (iv) secure the Mortgage Files in
fire resistant facilities and conduct periodic physical inspections of them in
accordance with customary standards for custody of this type. The Indenture
Custodian will promptly report to the Issuer and the Indenture Trustee any
failure on its part to hold the Mortgage Files as provided in this Agreement
and promptly take appropriate action to remedy the failure.
(b) Stamping Trigger Event. If a Stamping Trigger Event has occurred in
accordance with Section 2.02(e) of the Sale and Servicing Agreement and the
Credit Enhancer so instructs the Custodian in writing, the Custodian, within
30 days of such written instruction by the Credit Enhancer, will stamp on the
blank endorsement on each loan agreement the following: "CWHEQ Revolving Home
Equity Loan Trust, Series 0000-X, Xxx Xxxx xx Xxx Xxxx, as Indenture Trustee."
On the earlier of the completion of the stamping and 60 days after the receipt
by the Custodian of the notice mentioned above, the Credit Enhancer shall have
the right to inspect the loan agreements upon 5 day's written notice to the
Custodian, the Indenture Trustee and the Sponsor. If the Custodian fails to
stamp the loan agreements in accordance with the requirements of this Section
4(b), the Custodian will make the Mortgage Loans available for stamping by the
Credit Enhancer or its agent under the supervision (but not the direction) of
the Custodian. All costs in connection with any stamping in accordance with
this Section 4(b) shall be at the sole expense of the Credit Enhancer and
shall not be charged to the Sponsor, the Trust, or the Custodian. The fees for
the stamping will be mutually agreed between the Custodian and the Credit
Enhancer prior to stamping the loan agreements. If a Mortgage Loan is released
from the lien of the Indenture in accordance with the terms thereof the
stamping shall be removed from the related loan agreement at the sole expense
of the Credit Enhancer.
(c) Release of Documents. On receipt by the Indenture Custodian of the
certification of the Master Servicer in physical or electronic form,
substantially in the form of Exhibit D to the Sale and Servicing Agreement,
the Indenture Custodian shall release to the Master Servicer the related
Mortgage Files for the Mortgage Loan covered by the certification. The
certification may be delivered to the Indenture Custodian in a mutually agreed
electronic format, and to the extent the request originates on its face
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from a servicing officer, need not be manually signed.
Section 5. Access to Records.
The Custodian shall permit the Indenture Trustee, the Issuer, the Master
Servicer, the Credit Enhancer, or their respective duly authorized officers,
attorneys, or auditors, and the supervisory agents and examiners of each of
them, to inspect the items delivered to it under this Agreement and the books
and records maintained by the Custodian pursuant to this Agreement, without
charge but only after not less than two Business Days' prior notice and during
normal business hours at the offices of the Custodian.
Section 6. Instructions; Authority to Act.
The Indenture Custodian may follow any instructions with respect to the
Collateral received in the form of an Officer's Certificate of the Indenture
Trustee. The instructions may be general or specific in terms. An executed
incumbency certificate of the Indenture Trustee certifying the authority of
certain officers to take specified actions may be accepted by the Indenture
Custodian as conclusive evidence of the authority of the officers to act and
may be considered in full force until receipt of written notice to the
contrary by the Indenture Custodian from the Indenture Trustee.
The Trust Custodian may follow any instructions with respect to any items
held exclusively for the Issuer received in the form of an Officer's
Certificate of the Issuer. The instructions may be general or specific in
terms. An executed incumbency certificate of the Issuer certifying the
authority of certain officers to take specified actions may be accepted by the
Trust Custodian as conclusive evidence of the authority of the officers to act
and may be considered in full force until receipt of written notice to the
contrary by the Trust Custodian from the Issuer.
Section 7. Advice of Counsel.
The Custodian may rely and act on the advice of counsel, including
in-house counsel, with respect to its performance under this Agreement as
Custodian and shall not be liable for any action reasonably taken pursuant to
advice of counsel.
Section 8. Representations and Warranties.
The Custodian represents and warrants that on the Closing Date:
(a) it is a national association duly organized, validly existing, and in
good standing under the laws of its place of organization;
(b) it has full power and authority to execute, deliver, and perform this
Agreement, and has taken all necessary action to authorize the execution,
delivery, and performance by it of this Agreement;
(c) the consummation of the transactions contemplated by this Indenture
and the fulfillment of its terms do not conflict with, result in any breach
of, or constitute (with or without notice or lapse of time) a default under,
the charter or bylaws of the
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Custodian or any agreement or other instrument to which it is a party or by
which it is bound;
(d) to the Custodian's best knowledge, no proceedings or investigations
concerning the Custodian are pending or threatened before any court,
regulatory body, administrative agency, or other governmental instrumentality
having jurisdiction over it or its properties:
(1) asserting the invalidity of this Agreement,
(2) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, or
(3) seeking any determination that might affect its performance of
its obligations under this Agreement or the validity or enforceability of
this Agreement; and
(e) it is acting solely as the agent for the Indenture Trustee.
Section 9. Effective Period, Termination, and Amendment, and Interpretive
and Additional Provisions.
This Agreement shall become effective as of its date and shall continue
in full force until terminated in accordance with its terms. This Agreement
may be terminated by either the Indenture Trustee with the consent of the
Issuer and the Credit Enhancer or by the Custodian in a writing delivered or
mailed, postage prepaid, to the other parties and the Credit Enhancer. The
termination shall take effect no sooner than sixty days after the date of
delivery or mailing. Concurrently with, or as soon as practicable after, the
termination of this Agreement, the Indenture Custodian shall deliver the
Collateral to the Indenture Trustee (or to a person designated by the
Indenture Trustee) anywhere the Indenture Trustee reasonably designates with
the consent of the Credit Enhancer, and the Trust Custodian shall deliver any
items held exclusively for the Issuer to the Issuer (or to a person designated
by the Issuer) anywhere the Issuer reasonably designates with the consent of
the Credit Enhancer.
Section 10. Limitation of Liability.
(a) The Custodian undertakes to perform only the obligations specified in
this Agreement. The Issuer, the Owner Trustee, Master Servicer, and Indenture
Trustee acknowledge that no implied obligations exist under this Agreement.
Neither the Custodian nor any of its affiliates, officers, directors,
employees, or agents shall be liable, directly or indirectly, for any damages
or expenses arising out of the services performed under this Agreement other
than damages that result from their gross negligence, willful misconduct, or
bad faith. The Custodian and its officers, directors, employees, and agents
will not be liable for any consequential, indirect, punitive, or special
damages.
(b) Except as provided in Section 2, the Custodian makes no warranty or
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representation and has no responsibility for the completeness, validity,
sufficiency, value, genuineness, ownership, or transferability of the Mortgage
Loans or any of the documents in the Mortgage Files.
(c) The Custodian need not expend or risk its own funds or otherwise
incur financial liability in the performance of any of its duties under this
Agreement, or in the exercise of its rights, if the Custodian believes that
repayment of the funds or adequate indemnity against the risk or liability is
not reasonably assured to it.
(d) Without limiting the generality of the foregoing, the Custodian may
rely on and shall be protected in acting in good faith on any notice or other
communication received by it that it reasonably believes to be genuine and
duly authorized with respect to all matters pertaining to this Agreement and
its duties under this Agreement.
(e) The Custodian shall not be responsible or liable for, and makes no
representation or warranty with respect to, the validity, adequacy, or
perfection of any lien on or security interest in any Mortgage Loan.
(f) Any other provision of this Agreement to the contrary
notwithstanding, the Custodian shall have no notice of, and shall not be bound
by, any other document or agreement executed or delivered in connection with,
or intended to control any part of, the transactions anticipated by or
referred to in this Agreement unless the Custodian is a signatory party to
that document or agreement. Notwithstanding the foregoing sentence, the
Custodian shall be deemed to have notice of the terms (including definitions
not otherwise set forth in full in this Agreement) of other documents and
agreements executed or delivered in connection with, or intended to control
any part of, the transactions anticipated by or referred to in this Agreement,
to the extent the terms are referenced, or are incorporated by reference, into
this Agreement only as long as the Indenture Trustee has provided a copy of
the document or agreement to the Custodian.
(g) The Custodian shall have only the obligations expressly set forth in
this Agreement or in a written amendment to this Agreement executed by the
parties to this Agreement or their successors and assigns. If any provision of
this Agreement implies or requires that action or forbearance be taken by a
party, but is silent as to which party has the duty to act or refrain from
acting, the parties agree that the Custodian shall not be the party required
to take the action or refrain from acting. In no event shall the Custodian
have any responsibility to ascertain or take action except as expressly
provided in this Agreement.
(h) Nothing in this Agreement shall impose on the Custodian any duty to
qualify to do business in any jurisdiction, other than (i) any jurisdiction
where any Mortgage File is or may be held by the Custodian from time to time
under this Agreement, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure
to qualify could have a material adverse effect on the Custodian or its
property or business or on the ability of the Custodian to perform its duties
under this Agreement.
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(i) The Custodian may execute any of its duties under this Agreement
through any of its agents, attorneys-in-fact, or affiliates. Any agent,
attorney-in-fact, or affiliate of the Custodian (and any affiliate's
directors, officers, agents, and employees) that performs duties in connection
with this Agreement shall be entitled to the same benefits of the
indemnification, waiver, and other protective provisions to which the
Custodian is entitled under this Agreement, but the Custodian shall remain
responsible for the performance of those duties.
(j) The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Acts beyond its control
include acts of God, strikes, lockouts, riots, acts of war or terrorism,
epidemics, nationalization, expropriation, currency restrictions, governmental
regulations superimposed after the fact, fire, communication line failures,
computer viruses, power failures, earthquakes, or other disasters.
Section 11. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER STATE.
Section 12. Amendment.
This agreement may not be amended without the written consent of all the
parties.
Section 13. Notices.
All notices, demands, instructions, consents, and other communications
required or permitted under this Agreement shall be in writing and shall be
personally delivered or sent by first class or express mail (postage prepaid),
national overnight courier service, or by facsimile transmission or other
electronic communication device capable of transmitting or creating a written
record (confirmed by first class mail) and shall be considered to be given for
purposes of this Agreement on the day that the writing is delivered when
personally delivered or sent by facsimile or overnight courier or three
Business Days after it was sent to its intended recipient if sent by first
class mail. Unless otherwise specified in a notice sent or delivered in
accordance with the provisions of this Section, notices, demands,
instructions, consents, and other communications in writing shall be given to
or made on the respective parties at their respective addresses indicated in
the Adoption Annex attached to the Indenture.
Section 14. Binding Effect.
This Agreement shall be binding on and inure to the benefit of the
parties to this Agreement and their respective successors and assigns. Except
as contemplated in this Agreement, none of the parties may assign any of its
rights and obligations under this Agreement or any interest in this Agreement
without the consent of the other parties and the Credit Enhancer. The
Custodian may assign its rights and obligations under this
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Agreement, in whole or in part, to any affiliate with the consent of the
Credit Enhancer. The Custodian agrees to notify the other parties of any
assignment. An affiliate is any entity that directly or indirectly is under
common control with the Custodian, or is under contract to be under common
control with the Custodian, and includes a subsidiary or parent company of the
Custodian.
Section 15. Counterparts.
This Agreement may be executed in one or more counterparts and by the
different parties to this Agreement on separate counterparts, each of which,
when so executed, shall be an original and all of which shall constitute one
agreement.
Section 16. Severability of Provisions.
Any provision of this Agreement that is prohibited or unenforceable in
any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of the prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
the provision in any other jurisdiction.
Section 17. Third Party Beneficiary.
The Credit Enhancer is a third party beneficiary of this Agreement.
Section 18. Merger of Custodian.
Any entity into which the Custodian may be merged or converted or with
which it may be consolidated, or any entity resulting from any merger,
conversion, or consolidation to which the Custodian is a party, or any entity
succeeding to the business of the Custodian, shall be the successor of the
Custodian under this Agreement, without the execution or filing of any paper
or any further act on the part of any of the parties to this Agreement,
anything in this Agreement to the contrary notwithstanding.
Section 19. Indemnification.
The Issuer agrees to indemnify the Custodian and its affiliates,
directors, officers, agents, and employees, against any losses, claims,
damages, or liabilities of any kind, including reasonable attorneys' fees,
that may arise against Custodian or its affiliates, directors, officers,
agents, or employees, in any way arising out of this Agreement or any action
taken or not taken by Custodian or its permitted successors and assigns under
this Agreement unless they arise because of the breach by the Custodian of its
obligations under this Agreement, which breach was caused by the gross
negligence, lack of good faith, or willful misconduct on the part of Custodian
or any of its affiliates, directors, officers, agents, or employees.
The Custodian agrees to indemnify the Issuer against any losses, claims,
damages, or liabilities of any kind, including reasonable attorneys' fees, it
suffers arising out of the gross negligence, lack of good faith, or willful
misconduct on the part of Custodian or any of its affiliates, directors,
officers, agents, or employees.
The foregoing indemnifications shall survive any termination or
expiration of this Agreement or the resignation or removal of the Custodian.
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Section 20. Dispute Resolution, Arbitration.
This Agreement evidences a transaction involving interstate commerce. Any
disputes arising from this Agreement shall be decided by binding arbitration
which shall be conducted, at the request of any party, in New York, New York,
before one arbitrator designated by the American Arbitration Association (the
"AAA"), in accordance with the Commercial Arbitration Rules of the AAA, and to
the maximum extent applicable, the United States Arbitration Act (Title 9 of
the United States Code). Notwithstanding anything in this Agreement to the
contrary, any party may proceed to a court of competent jurisdiction to obtain
equitable relief at any time. An arbitrator shall have no authority to award
punitive damages or other damages not measured by the prevailing party's
actual damages. To the maximum extent practicable, an arbitration proceeding
under this Agreement shall be concluded within 180 days of the filing of the
dispute with the AAA. This arbitration clause shall survive any termination,
amendment, or expiration of the Agreement and if any provision of this
arbitration clause is found to be unenforceable, the remaining parts of the
arbitration clause shall not be affected and shall remain fully enforceable.
Section 21. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a) this
Agreement is executed and delivered by Wilmington Trust Company, not
individually or personally but solely as trustee of the Issuer, in the
exercise of the powers and authority conferred and vested in it under the
Trust Agreement, (b) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as personal
representations, undertakings and agreements by Wilmington Trust Company but
is made and intended for the purpose of binding only the Issuer and (c) under
no circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligations, representation, warranty or covenant
made or undertaken by the Issuer under this Agreement or the other related
documents.
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In Witness Whereof, each of the parties has caused this Agreement to be
executed by a duly authorized officer as of the day and year first above
written.
CWHEQ, INC.
By: /s/ Xxxxxx Xxxxx
-----------------------
Name: Xxxxxx Xxxxx
Title: Vice President
CWHEQ Revolving Home Equity Loan
Trust, Series 2007-A
By: Wilmington Trust Company,
not in its individual
capacity but solely as
Owner Trustee
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Sr. Financial Services
Officer
THE BANK OF NEW YORK.,
not in its individual
capacity but solely as
Indenture Trustee
By: /s/ Xxxxxxxx Xxxxxxxxxxx
-------------------------
Name: Xxxxxxxx Xxxxxxxxxxx
Title: Vice President
Treasury Bank, a Division of
Countrywide Bank, N.A.,
as Custodian for the Indenture
Trustee
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
Treasury Bank, a Division of
Countrywide Bank, N.A.,
as Custodian for the Issuer
By: /s/ Xxxxxx Xxxxx
-------------------------
Name: Xxxxxx Xxxxx
Title: Senior Vice President
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EXHIBIT A
FORM OF INITIAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Credit Enhancer]
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---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 2007-A, as the
Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 2007-A
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and Servicing
Agreement (the "Sale and Servicing Agreement"), the undersigned, as Indenture
Custodian for the Indenture Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule delivered pursuant to Section
2.01(d) of the Sale and Servicing Agreement (other than any Mortgage Loan paid
in full or any Mortgage Loan listed on the attached Document Exception Report)
it has received, among other
A-1
things:
(i) the original Mortgage Note endorsed in blank or, if the original
Mortgage Note has been lost or destroyed and not replaced, an original
lost note affidavit from the Sponsor stating that the original Mortgage
Note was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note; and
(ii) unless the Mortgage Loan is registered on the MERS(R) System,
an original Assignment of Mortgage in blank in recordable form.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of
Countrywide Bank, N.A.,
as Custodian for the Indenture Trustee
By:____________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF DELAY DELIVERY CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Credit Enhancer]
---------------------
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 2007-A, as the
Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 2007-A
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and
Servicing Agreement (the "Sale and Servicing Agreement"), the undersigned, as
Indenture Custodian for the Indenture Trustee, hereby certifies that as to
each Mortgage Loan listed in the Mortgage Loan Schedule delivered pursuant to
Section 2.01(d) of the Sale and Servicing Agreement (other than any Mortgage
Loan paid in full or any Mortgage Loan listed on the attached Document
Exception Report) it has received, among other
B-1
things:
(i) the original Mortgage Note endorsed in blank or, if the original
Mortgage Note has been lost or destroyed and not replaced, an original
lost note affidavit from the Sponsor stating that the original Mortgage
Note was lost, misplaced or destroyed, together with a copy of the
related Mortgage Note; and
(ii) unless the Mortgage Loan is registered on the MERS(R) System,
an original Assignment of Mortgage in blank in recordable form.
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of
Countrywide Bank, N.A.,
as Custodian for the Indenture Trustee
By:____________________________
Name:
Title:
B-2
EXHIBIT C
FORM OF FINAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Credit Enhancer]
---------------------
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 2007-A, as the
Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 2007-A
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and Servicing
Agreement (the "Sale and Servicing Agreement"), the undersigned, as Indenture
Custodian for the Indenture Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) the original Mortgage Note endorsed in blank or, if the original
Mortgage
C-1
Note has been lost or destroyed and not replaced, an original lost note
affidavit from the Sponsor stating that the original Mortgage Note was
lost, misplaced or destroyed, together with a copy of the related
Mortgage Note;
(ii) unless the Mortgage Loan is registered on the MERS(R) System, an
original Assignment of Mortgage in blank in recordable form;
(iii) the original recorded Mortgage, noting the presence of the MIN
of the Mortgage Loan and language indicating that the Mortgage Loan is a
MOM Loan if the Mortgage Loan is a MOM Loan, or, if, in connection with
any Mortgage Loan, the original recorded Mortgage with evidence of
recording thereon cannot be delivered on or before the Closing Date or
Subsequent Closing Date because of a delay caused by the public recording
office where such original Mortgage has been delivered for recordation or
because such original Mortgage has been lost, an accurate copy of such
Mortgage, together with (i) in the case of a delay caused by the public
recording office, an Officer's Certificate of the Sponsor which may be in
the form of a blanket certificate of the Sponsor covering more than one
Mortgage stating that such original Mortgage has been dispatched to the
appropriate public recording official or (ii) in the case of an original
Mortgage that has been lost, a copy certified by the appropriate county
recording office where such Mortgage is recorded;
(iv) if applicable, the original of each intervening assignment
needed for a complete chain of title for the mortgage from its original
mortgagee or beneficiary to the Trust or in blank (or if the Mortgage
Loan is registered on the MERS(R) System to MERS and noting the presence
of a MIN) with evidence of recording thereon, or, if any such original
intervening assignment has not been returned from the applicable
recording office or has been lost, a true and correct copy thereof,
together with (i) in the case of a delay caused by the public recording
office, an Officer's Certificate of the Sponsor or the Depositor, which
may be a blanket certificate covering more than one intervening
assignment, stating that such original intervening assignment has been
dispatched to the appropriate public recording official for recordation
or (ii) in the case of an original intervening assignment that has been
lost, a copy certified by the appropriate county recording office where
such Mortgage is recorded;
(v) a title policy "(e.g., ALTA, FACT, PIRT, etc.)", a signed binder
or commitment for a title policy, or a preliminary title report (in those
states in which preliminary title reports are the customary form of title
policy commitment) for each Mortgage Loan with a Credit Limit in excess
of $100,000;
(vi) the original of any guaranty executed in connection with the
Mortgage Note;
(vii) the original of each assumption, modification, consolidation
or substitution agreement, if any, relating to the Mortgage Loan; and
C-2
(viii) any security agreement, chattel mortgage or equivalent
instrument executed in connection with the Mortgage.
Based on its review and examination and only as to the foregoing
documents, (a) such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan, and (b) the information set forth in items
(ii), (iii), and (iv), of the itemization of contents of the "Mortgage Loan
Schedule" in the Adoption Annex to the Indenture accurately reflects
information set forth in the Mortgage File, and (c) the information set forth
in item (v) of the itemization of contents of the "Mortgage Loan Schedule" in
the Adoption Annex to the Indenture was delivered to the Custodian.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of
Countrywide Bank, N.A.,
as Custodian for the
Indenture Trustee
By: ________________________
Name:
Title:
C-3
EXHIBIT D
FORM OF FURTHER FINAL CERTIFICATION
[date]
[Depositor]
[Master Servicer]
[Sponsor]
[Credit Enhancer]
---------------------
---------------------
Re: Sale and Servicing Agreement among CWHEQ, Inc., as Depositor,
Countrywide Home Loans, Inc., as Sponsor and Master Servicer,
CWHEQ Revolving Home Equity Loan Trust, Series 2007-A, as the
Trust, and The Bank of New York, as Indenture Trustee,
Revolving Home Equity Loan Asset Backed Notes, Series 2007-A
------------------------------------------------------------
Gentlemen:
In accordance with Section 2.02 of the above-captioned Sale and Servicing
Agreement (the "Sale and Servicing Agreement"), the undersigned, as Indenture
Custodian for the Indenture Trustee, hereby certifies that as to each Mortgage
Loan listed in the Mortgage Loan Schedule (other than any Mortgage Loan paid
in full or listed on the attached Document Exception Report) it has received:
(i) for each Mortgage Loan with a Credit Limit in excess of
D-1
$100,000, a final original title policy "(e.g., ALTA, FACT, PIRT, etc.)".
Based on its review and examination and only as to the foregoing
documents, such documents appear regular on their face (i.e. are not
mutilated, damaged, defaced, torn, or otherwise physically altered) and
related to such Mortgage Loan.
The Indenture Custodian has made no independent examination of any
documents in each Mortgage File beyond the review specifically required in the
Sale and Servicing Agreement. The Indenture Custodian makes no representations
as to: (i) the validity, legality, sufficiency, enforceability, or genuineness
of any of the documents in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, effectiveness, or suitability of any Mortgage Loan.
In reviewing any Mortgage File pursuant to this certification, the
Custodian is not responsible for determining whether any document is valid and
binding, whether the text of any assignment or endorsement is in proper or
recordable form (except, if applicable, to determine if the Issuer or the
Indenture Trustee is the assignee or endorsee), whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction,
or whether a blanket assignment is permitted in any applicable jurisdiction,
whether any person executing any document is authorized to do so or whether
any signature on any document is genuine, but shall only be required to
determine whether a document has been executed, that it appears to be what it
purports to be, and, where applicable, that it purports to be recorded.
Capitalized words and phrases used in this Certification have the
meanings assigned to them in the Sale and Servicing Agreement.
Treasury Bank, a division of
Countrywide Bank, N.A.,
as Custodian for the
Indenture Trustee
By: ________________________
Name:
Title:
D-2
