Exhibit 99.8
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U.S. BANK NATIONAL ASSOCIATION
as Trustee for the
C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB2
and
XXXXXX LOAN SERVICING LP,
as Servicer
and
THE BANK OF NEW YORK
as Custodian
CUSTODIAL AGREEMENT
dated as of February 1, 2006
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TABLE OF CONTENTS
Page
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Section 1. Definitions......................................................1
Section 2. Delivery of Custodial Files......................................5
Section 3. Custodian as Bailee..............................................6
Section 4. Acknowledgement of Receipt; Trust Receipts.......................6
Section 5. Obligations of the Custodian.....................................7
Section 6. Initial and Final Certifications.................................7
Section 7. Representations and Warranties of the Custodian..................8
Section 8. Future Defects...................................................9
Section 9. Release for Servicing............................................9
Section 10. RESERVED........................................................9
Section 11. Release for Payment.............................................9
Section 12. Fees of Custodian .............................................10
Section 13. Removal of Custodian ..........................................10
Section 14. Transfer of Custodial Files Upon Termination...................10
Section 15. Examination of Custodial Files.................................10
Section 16. Insurance of Custodian.........................................10
Section 17. Counterparts...................................................11
Section 18. Periodic Statements............................................11
Section 19. GOVERNING LAW .................................................11
Section 20. Copies of Mortgage Documents...................................11
Section 21. No Adverse Interest of Custodian ..............................11
Section 22. Termination by Custodian.......................................11
Section 23. Term of Agreement..............................................12
Section 24. Notices........................................................12
Section 25. Successors and Assigns.........................................12
Section 26. Concerning the Custodian.......................................12
Section 27. Reliance of Custodian..........................................13
Section 28. Transmission of Custodial Files............................... 13
Section 29. Authorized Representatives.....................................13
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Section 30. Reproduction of Documents......................................14
Section 31. Limitations on the Responsibilities of the Custodian...........14
Section 32. WAIVER OF JURY TRIAL...........................................15
Section 33. Regulation AB..................................................16
EXHIBITS
EXHIBIT 1 FORM OF ACKNOWLEDGEMENT OF RECEIPT
EXHIBIT 2A FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
EXHIBIT 2B FORM OF TRUST RECEIPT AND FINAL CERTIFICATION
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT 4 AUTHORIZED REPRESENTATIVES OF SERVICER
EXHIBIT 5 AUTHORIZED REPRESENTATIVES OF TRUSTEE
EXHIBIT 6 MORTGAGE LOAN SCHEDULE
EXHIBIT 7 FORM OF ANNUAL CERTIFICATION
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THIS CUSTODIAL AGREEMENT (the "Custodial Agreement"), dated as of
February 1, 2006, by and among U.S. Bank National Association, a national
banking association having an address 00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X, Xx.
Xxxx, Xxxxxxxxx 00000-0000, Attention: Structured Finance-C-BASS 2006-CB2, not
individually, but solely as trustee for C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2006-CB2 (the "Trustee"), Xxxxxx Loan Servicing LP, a
Delaware limited partnership having an address at 0000 Xxxx Xxxxxxx Xxxxx,
Xxxxxxx, Xxxxx 00000, as servicer (the "Servicer"), and The Bank of New York,
a New York banking corporation having an address at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, as custodian (the "Custodian").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Bond Securitization, L.L.C. (the "Depositor") has agreed
to purchase certain one-to-four family, adjustable-rate and fixed-rate
mortgage loans secured by first and second liens on residential real
properties (together, the "Mortgage Loans") from Credit-Based Asset Servicing
and Securitization LLC (the "Seller"), pursuant to the terms and conditions of
a Mortgage Loan Purchase Agreement, dated as of February [__________________],
2006 between the Depositor and the Seller (the "Purchase Agreement"); and
WHEREAS, the Servicer is to service the Mortgage Loans pursuant to
the terms and conditions of a Pooling and Servicing Agreement, of even date
herewith among the Depositor, the Seller, the Servicer and the Trustee (the
"Pooling and Servicing Agreement"), and the Trustee will retain record title
to the Mortgage Loans; and
WHEREAS, the Custodian is a New York banking corporation and is
otherwise authorized to act as Custodian pursuant to this Custodial Agreement;
and
NOW THEREFORE, in consideration of the mutual undertakings herein
expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Pooling and Servicing Agreement.
Acknowledgment of Receipt: A trust receipt and acknowledgment as
to each Mortgage Loan, which Acknowledgment of Receipt is delivered to the
Trustee by the Custodian in the form annexed hereto as Exhibit 1.
Adjustment Date: With respect to each Adjustable Rate Mortgage
Loan, the date set forth in the related Mortgage Note on which the Mortgage
Interest Rate on the Mortgage Loan is adjusted in accordance with the terms of
the Mortgage Note.
Adjustable Rate Mortgage Loan: A Mortgage Loan that provides for
the adjustment of the Mortgage Interest Rate payable in respect thereof.
Agreement: This Custodial Agreement and all amendments,
attachments and supplements hereto.
ALTA: American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgage Loan, the value of
the related Mortgaged Property based upon the appraisal made for the
originator at the time of origination of the Mortgage Loan or the sale price
of the Mortgaged Property at such time of origination (whichever is less;
provided, however, that in the case of a Refinanced Mortgage Loan, such value
is based solely upon the appraisal made at the time of origination of such
Refinanced Mortgage Loan).
Assignment of Mortgage: An assignment of the Mortgage, notice of
transfer or equivalent instrument in recordable form, sufficient under the
laws of the jurisdiction wherein the related Mortgaged Property is located to
reflect, when recorded, the sale of the Mortgage to the Trust, which
assignment, notice of transfer or equivalent instrument may be in the form of
one or more blanket assignments covering the Mortgage Loans secured by
Mortgaged Properties located in the same jurisdiction, if permitted by law and
acceptable for recording in the applicable recording office.
Business Day: Any day other than a Saturday, Sunday or a day on
which banking institutions in the State of New York and the State of Texas are
authorized or obligated by law or executive order to be closed.
Closing Date: February 28, 2006.
Commission. The United States Securities and Exchange Commission.
Custodian: The Bank of New York, or its successor in interest or
assigns, or any successor to the Custodian under this Custodial Agreement as
herein provided.
Custodial File: As to each Mortgage Loan, any mortgage loan
documents which are delivered to the Custodian or which at any time come into
the possession of the Custodian as set forth in Section 2 of this Custodial
Agreement.
Cut-off Date: February 1, 2006.
Delivery Date: The date which occurs five (5) Business Days prior
to the Closing Date or such other date as mutually agreed upon by the Trustee,
the Custodian and the Servicer.
Eligible Substitute Mortgage Loans: As defined in the Pooling
and Servicing Agreement.
Xxxxxx Xxx: Formerly known as the Federal National Mortgage
Association, or any successor organization.
Xxxxxxx Mac: The Federal Home Loan Mortgage Corporation, or
any successor organization.
Gross Margin: With respect to any Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note
and the related Mortgage Loan
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Schedule that is added to the Index on each Adjustment Date in accordance with
the terms of the related Mortgage Note to determine the new Mortgage Interest
Rate for such Mortgage Loan.
Index: With respect to each Adjustable Rate Mortgage Loan, a rate
per annum to which the Gross Margin is added on each Adjustment Date to
determine the new Mortgage Interest Rate for such Mortgage Loan.
Maximum Mortgage Interest Rate: With respect to each Adjustable
Rate Mortgage Loan, an interest rate that is set forth on the related Mortgage
Loan Schedule and in the related Mortgage Note and that is the maximum
interest rate to which the Mortgage Interest Rate on such Mortgage Loan may be
increased on any Adjustment Date.
Minimum Mortgage Interest Rate: With respect to each Adjustable
Rate Mortgage Loan, an interest rate that is set forth on the related Mortgage
Loan Schedule and in the related Mortgage Note and that is the minimum
interest rate to which the Mortgage Interest Rate on such Mortgage Loan may be
decreased on any Adjustment Date.
Mortgage: The mortgage, deed of trust or other instrument securing
a Mortgage Note, which creates a first or second lien on Mortgaged Property
securing the Mortgage Note.
Mortgage Interest Rate: With respect to each Mortgage Loan, the
annual rate at which interest accrues on such Mortgage Loan from time to time
in accordance with the provisions of the related Mortgage Note, which rate, as
of the Cut-off Date, shall be the rate set forth in the related Mortgage Loan
Schedule as the Mortgage Interest Rate.
Mortgage Loan: Each mortgage loan sold, assigned or transferred
pursuant to this Custodial Agreement and identified on the Mortgage Loan
Schedule attached hereto as Exhibit 6.
Mortgage Loan Schedule: The schedule of Mortgage Loans identified
in the Pooling and Servicing Agreement to be delivered to the Custodian on the
Delivery Date and to be annexed hereto as Exhibit 6.
Mortgage Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to each Mortgage Loan, the
Mortgagor's real property securing repayment of the debt evidenced by a
Mortgage Note, consisting of a fee simple interest in a single or contiguous
parcel of real property.
Mortgagor: The obligor on a Mortgage Note, the owner of the
Mortgaged Property and the grantor or mortgagor named in the related Mortgage
and such grantor's or mortgagor's successors in title to the Mortgaged
Property.
Officer's Certificate: A certificate signed by the Chairman of the
Board or Vice Chairman of the Board, or the President, Senior Vice President,
Vice President, Assistant Vice President, Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary of the Person delivering such certificate.
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Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company, limited partnership, government or any agency or political
subdivision thereof.
Primary Insurance Policy: Each policy of primary mortgage guaranty
insurance in effect with respect to any Mortgage Loan, or any replacement
policy therefor obtained by the Servicer issued by a Qualified Insurer, as
required by Section 3.08 of the Pooling and Servicing Agreement with respect
to certain Mortgage Loans.
Qualified Insurer: Any insurance company acceptable to Xxxxxx Xxx
or Xxxxxxx Mac.
Refinanced Mortgage Loan: A Mortgage Loan that was made to a
Mortgagor who owned the Mortgaged Property prior to the origination of such
Mortgage Loan.
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.
Servicer: Xxxxxx Loan Servicing LP, or its successor in interest
or assigns, or any successor to the Servicer under the Pooling and Servicing
Agreement as therein provided.
Servicing Criteria. The "servicing criteria" set forth in Items
1122(d)(1)(ii), 1122(d)(4)(i) and 1122(d)(4)(ii) of Regulation AB, as such may
be amended from time to time.
Subcustodian: Bank of New York Trust Company, N.A. having an
address at 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
Subcontractor: Any vendor, subcontractor or other Person that is
not responsible for the overall servicing (as "servicing" is commonly
understood by participants in the mortgage-backed securities market) of
Mortgage Loans but performs one or more discrete functions identified in Item
1122(d) of Regulation AB with respect to Mortgage Loans under the direction or
authority of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of
the Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion
of the material servicing functions required to be performed by the Company
under this Agreement or any Reconstitution Agreement that are identified in
Item 1122(d) of Regulation AB.
Trust Receipt: Either an Acknowledgment of Receipt, Trust Receipt
and Initial Certification or a Trust Receipt and Final Certification.
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Trust Receipt and Final Certification: A trust receipt and final
certification as to each Mortgage Loan, which Trust Receipt and Final
Certification is delivered to the Trustee by the Custodian in the fore annexed
hereto as Exhibit 2B.
Trust Receipt and Initial Certification: A trust receipt and
initial certification as to each Mortgage Loan, which Trust Receipt and
Initial Certification is delivered to the Trustee by the Custodian in the form
annexed hereto as Exhibit 2A.
Trustee: U.S. Bank National Association, as Trustee for the
C-BASS Mortgage Loan Asset-Backed Certificates, Series 2006-CB2, or its
successor in interest or assigns.
Section 2. Delivery of Custodial Files.
(a) The Servicer will deliver and release to the Custodian or the
Subcustodian on the Delivery Date the following original documents pertaining
to each of the Mortgage Loans identified in the Mortgage Loan Schedule:
(i) the original Mortgage Note including any riders
thereto, endorsed either (A) in blank or (B) in the following form:
"Pay to the order of U.S. Bank National Association as Trustee for
the C-BASS Mortgage Loan Asset-Backed Certificates, Series
2006-CB2, without recourse", or with respect to any lost Mortgage
Note, an original lost note affidavit stating that the original
mortgage note was lost, misplaced or destroyed, together with a
copy of the related Mortgage Note;
(ii) the original Mortgage including any riders thereto
with evidence of recording thereon, and the original recorded power
of attorney, if the Mortgage was executed pursuant to a power of
attorney, with evidence of recording thereon or, if such Mortgage
or power of attorney has been submitted for recording but has not
been returned from the applicable public recording office, has been
lost or is not otherwise available, a copy of such Mortgage or
power of attorney, as the case may be, certified to be a true and
complete copy of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and
substance acceptable for recording. The Mortgage shall be assigned
either (A) in blank or (B) to "U.S. Bank National Association, as
Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB2, without recourse";
(iv) an original or a certified copy of any intervening
assignment of Mortgage showing a complete chain of assignments;
(v) the original or a certified copy of the lender's
title insurance policy; and
(vi) the original or copies of each assumption,
modification, written assurance or substitution agreement, if any.
(b) In the event that any Mortgage Note is endorsed in blank as of
the Closing Date, promptly following the Closing Date, the Custodian or the
Servicer shall complete such
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endorsements in the following form: "Pay to the order of U.S. Bank National
Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2006-CB2, without recourse."
(c) From time to time, the Servicer shall forward to the Custodian
additional original documents, additional documents evidencing an assumption,
modification, consolidation or extension of a Mortgage Loan approved by the
Servicer, in accordance with the terms of the Pooling and Servicing Agreement.
All such mortgage documents held by the Custodian or the Subcustodian as to
each Mortgage Loan shall constitute the "Custodial File".
(d) The Servicer shall promptly but in no event later than thirty
(30) days after the Closing Date, submit for recording, in the appropriate
public office for real property records, each assignment referred to in
Section 2(a)(iii) and 2(a)(iv) above. In the event that any such assignment is
lost or returned unrecorded because of a defect therein, the Servicer shall
promptly prepare a substitute assignment to cure such defect and thereafter
cause each such assignment to be duly executed and recorded. The Custodian
shall maintain a copy of each such assignment in the Custodial File.
(e) At least twenty-four (24) hours prior to delivery of the
Mortgage Loans, the Servicer will provide or cause to provide to the
Custodian, via electronic transmission, a list of all the Mortgage Loans and
their related data fields including loan ID, Mortgagor name, mortgaged
property address, mortgage rate, maturity date, and original principal balance
of each such Mortgage Loan. This data shall be delivered to the Custodian in
an acceptable format that can be easily uploaded to the Custodian's system. A
hard copy of the Mortgage Loan Schedule will be delivered to the Custodian at
the time of delivery to the Custodian of such documents related to the
Mortgage Loans identified in such Mortgage Loan Schedule.
(f) Not later than ten (10) Business Days after the receipt by the
Custodian thereof, the Custodian shall review the related Mortgage File for
each Eligible Substitute Mortgage Loan and all documents related thereto, as
specified in Sections 2.01 and 2.02 of the Pooling and Servicing Agreement,
and shall deliver to the Servicer and the Trustee a certification,
substantially in the form of Exhibit F-2 to the Pooling and Servicing
Agreement, with respect to such Eligible Substitute Mortgage Loan, with any
applicable exceptions noted thereon. Within one (1) year of the date of
substitution, the Custodian shall deliver to the Servicer and the Trustee a
certification, in the form of Exhibit F-2 to the Pooling and Servicing
Agreement, with respect to each Eligible Substitute Mortgage Loan, with any
applicable exceptions noted thereon.
Section 3. Custodian as Bailee.
The Custodian hereby acknowledges that it is, and agrees to act as
agent and bailee for the Trustee and is holding each Custodial File delivered
to it on behalf of the Trustee.
Section 4. Acknowledgement of Receipt; Trust Receipts.
(a) No later than 11:00 a.m. New York Time on the Closing Date,
the Custodian shall deliver to the Trustee an Acknowledgment of Receipt
certifying, subject to any exceptions noted thereon, as to each Mortgage Loan
on the Mortgage Loan Schedule, (i) receipt
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of the original Mortgage Note (with any exceptions noted) and (ii) the
Mortgage Note has been reviewed by the Custodian and appears regular on its
face and relates to such Mortgage Loan.
(b) Upon the written directions of the Trustee, and upon the prior
tender by the Trustee of an applicable trust receipt or trust receipts
(including any related Trust Receipt and Final Certification that has been
issued), the Custodian shall deliver all or any portion of the related
Custodial Files held by it pursuant to such Trust Receipt to the Trustee, or
to such other party designated by the Trustee in such written direction, and
to the place indicated in any such written direction from the Trustee. If such
delivery is for less than all of the Custodial Files held by the Custodian
with respect to such Trust Receipt (and a Trust Receipt and Final
Certification has been issued), the Custodian shall deliver to the Trustee a
new Trust Receipt and Final Certification with respect to the related
Custodial Files retained by the Custodian. Each Trust Receipt (including any
Trust Receipt and Final Certification) surrendered shall be canceled by the
Custodian.
Section 5. Obligations of the Custodian.
With respect to the Mortgage Note, the Mortgage and the Assignment
of Mortgage and other documents constituting each Custodial File which is
delivered to the Custodian or which come into the possession of the Custodian,
the Custodian is the custodian for the Trustee exclusively. The Custodian
shall hold all mortgage documents received by it constituting the Custodial
File for the exclusive use and benefit of the Trustee, and shall make
disposition thereof only in accordance with this Custodial Agreement and the
instructions furnished by the Trustee. The Custodian shall segregate and
maintain continuous custody of all mortgage documents constituting the
Custodial File in secure and fire-resistant facilities in accordance with
customary standards for such custody. The Custodian shall not be responsible
to verify (i) the validity, legality, enforceability, sufficiency, due
authorization or genuineness of any document in the Custodial File or of any
Mortgage Loans or (ii) the collectability, insurability, effectiveness
including the authority or capacity of any Person to execute or issue any
document in the Custodial File, or suitability of any Mortgage Loan unless
specified otherwise in this Custodial Agreement. The Custodian shall promptly
report to the Trustee any failure on its part to hold the Custodial Files and
maintain its accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy such failure.
Section 6. Initial and Final Certifications.
(a) Within sixty (60) days after the Closing Date, the Custodian
shall ascertain that all documents specified in Sections 2(a)(i)-(vi) of this
Custodial Agreement are in its possession, and shall deliver to the Trustee a
Trust Receipt and Initial Certification certifying, subject to any exceptions
noted thereon that, as to each Mortgage Loan listed in the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
specifically identified in such certification as not covered by such
certification): (i) all documents required to be delivered to it pursuant to
Sections 2(a)(i)-(vi) of this Custodial Agreement are in its possession; (ii)
such documents have been reviewed by it; and have not been mutilated, damaged
or torn and relate to such Mortgage Loan and (iii) based on its examination
and only as to the foregoing, the information set forth in the Mortgage Loan
Schedule relating to the Mortgage Loan identifying number, the city, state,
and zip code of the Mortgaged Property, the type of
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Residential Dwelling constituting the Mortgaged Property or a designation that
the Mortgaged Property is a multi-family property, the original months to
maturity, the Mortgage Interest Rate of the Mortgage Loan as of the Cut-off
Date, and whether the Mortgage Loan has a prepayment penalty accurately
reflects information set forth in the Mortgage File; (iv) all Assignments of
Mortgage or intervening assignments of mortgage, as applicable, have been
submitted for recording; and (v) each Mortgage Note has been endorsed as
provided in Section 2(a)(i) of this Custodial Agreement and each Mortgage has
been assigned in accordance with Section 2(a)(iii) of this Custodial
Agreement.
(b) Prior to the first anniversary date of this Custodial
Agreement the Custodian shall deliver to the Depositor, the Trustee and the
Servicer a Trust Receipt and Final Certification in the form annexed hereto as
Exhibit 2B evidencing the completeness of the Mortgage Files, with any
applicable exceptions noted thereon.
Section 7. Representations and Warranties of the Custodian.
The Custodian hereby represents and warrants to, and covenants
that, as of the date hereof:
(a) Each of the Custodian and the Subcustodian is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and satisfies the requirements for acting as a Xxxxxx
Xxx/Xxxxxxx Mac custodian, and has full corporate power and authority to own
its properties and conduct its business as currently conducted.
(b) The Custodian has all requisite corporate power and authority
to enter into and perform its obligations under this Custodial Agreement and
to consummate the transactions contemplated hereby. The execution and delivery
by the Custodian of this Custodial Agreement and the consummation by the
Custodian of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of the Custodian.
This Custodial Agreement has been duly and validly executed and delivered by
the Custodian and constitutes a legal, valid and binding obligation of the
Custodian, enforceable against the Custodian, in accordance with its terms,
subject to bankruptcy, reorganization, insolvency, moratorium and similar laws
of general applicability relating to or affecting creditors rights and to
general principles of equity.
(c) Neither the execution and delivery by the Custodian of this
Custodial Agreement, nor the consummation by the Custodian of any of the
transactions contemplated hereby, nor the fulfillment by the Custodian of the
terms hereof, will conflict with, or violate, result in a material breach of
or constitute a material default (with or without notice or lapse of time, or
both) under (i) any term or provision of the Certificate of Incorporation or
By-laws of the Custodian or (ii) any term or provision of any indenture or
other material agreement or instrument, to which the Custodian is a party or
by which the Custodian is bound. The execution, delivery and performance of
this Custodial Agreement by the Custodian or the consummation by the Custodian
of the transactions contemplated hereby will not require the authorization,
consent or approval of any governmental authority or agency having
jurisdiction over and regulating the activities of the Custodian.
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(d) The Custodian shall perform its obligations under this
Custodial Agreement in accordance with the standards incorporated by Xxxxxx
Mae or Xxxxxxx Mac; the Custodian shall at all times maintain accurate and
complete records in connection with the performance of its obligations under
this Custodial Agreement.
(e) The Custodian does not use any Subservicers or Subcontractors.
Section 8. Future Defects.
During the term of this Custodial Agreement, if the Custodian
discovers any defect with respect to the Custodial File, the Custodian shall
give written specification of such defect to the Servicer and the Trustee.
Section 9. Release for Servicing.
From time to time and as appropriate for the foreclosure or
servicing of any of the Mortgage Loans, the Custodian is hereby authorized,
upon written receipt from the Servicer of a request for release of documents
and receipt in the form annexed hereto as Exhibit 3, to release to the
Servicer the related Custodial File or the documents set forth in such request
and receipt to the Servicer. All documents so released to the Servicer shall
be held by the Servicer in trust for the benefit of the Trustee in accordance
with the terms of the Pooling and Servicing Agreement. The Servicer shall
return to the Custodian the Custodial File or other such documents when the
Servicer's need therefor in connection with such foreclosure or servicing no
longer exists, unless the Mortgage Loan shall be liquidated in which case,
upon receipt of an additional request for release of documents and receipt
certifying such liquidation from the Servicer to the Custodian in the form
annexed hereto as Exhibit 3, the Servicer's request and receipt submitted
pursuant to the first sentence of this Section 9 shall be released by the
Custodian to the Servicer. The Servicer shall indemnify the Trust Fund and the
Trustee and each of their officers, directors and agents for any and all
liabilities, obligations, losses, compensatory damages, payments, costs or
expenses of any kind whatsoever that may be imposed on, incurred by or
asserted against the Trust Fund or the Trustee as a result of the release of
any Mortgage Loans or Custodial Files to the Servicer or the retention of the
Mortgage Loans and Custodial Files by the Servicer or any of its Affiliates;
provided, however, the Servicer shall not be liable to any of the foregoing
Persons for any amount and any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of such Person. The provisions of
this Section 9 shall survive the termination of this Custodial Agreement and
the termination or resignation of the Trustee.
Section 10. RESERVED.
Section 11. Release for Payment.
Upon receipt by the Custodian of the Servicer's request for
release of documents and receipt in the form annexed hereto as Exhibit 3
(which certification shall include a statement to the effect that all amounts
received in connection with such payment or repurchase have been credited to
the Custodial Account as provided in the Pooling and Servicing Agreement), the
Custodian shall promptly release the related Custodial File to the Servicer.
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Section 12. Fees of Custodian.
The Custodian shall charge such fees for its services under this
Custodial Agreement as are set forth in a separate agreement between the
Custodian and the Servicer, the payment of which fees, together with the
Custodian's expenses in connection herewith, shall be solely the obligation of
the Servicer.
Section 13. Removal of Custodian.
The Trustee, with or without cause (at the direction of the
Servicer), may upon at least sixty (60) days' notice remove and discharge the
Custodian from the performance of its duties under this Custodial Agreement by
written notice from the Trustee to the Custodian, with a copy to the Servicer.
Having given notice of such removal, the Servicer, with the consent of the
Trustee, promptly shall appoint a successor Custodian (which may be the
Trustee or an affiliate of the Trustee) to act on behalf of the Trustee by
written instrument, one original counterpart of which instrument shall be
delivered to the Trustee, with a copy to the Servicer and an original to the
successor Custodian. In the event of any such removal, the Custodian shall
promptly transfer to the successor Custodian, as directed, all Custodial Files
being administered under this Custodial Agreement. In the event of any such
appointments the Servicer shall be responsible for the fees and expenses of
the existing and successor Custodian. If the Trustee (at the direction of the
Servicer) removes the Custodian without cause, the Servicer shall be
responsible for payment of all expenses incurred in the transmission of the
Custodial Files to the successor Custodian and for all applicable release fees
of the Custodian. If the Servicer removes the Custodian, the Servicer shall be
responsible for payment of all expenses incurred in the transmission of the
Custodial Files to the successor Custodian and for all applicable release fees
of the Custodian.
Section 14. Transfer of Custodial Files Upon Termination.
Upon written request of the Trustee, the Custodian shall release
to such Persons as the Trustee shall designate the Custodial Files relating to
such Mortgage Loans as the Trustee shall request.
Section 15. Examination of Custodial Files.
Upon reasonable prior notice to the Custodian but not less than
two (2) Business Days notice, the Trustee and its agents, accountants,
attorneys, auditors and designees will be permitted during normal business
hours to examine the Custodial Files, documents, records and other papers in
the possession of or under the control of the Custodian relating to any or all
of the Mortgage Loans. The Custodial Files shall be maintained at the
Subcustodian's facility located at Bank of New York Trust Company, N.A., 0000
Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 or at such other location as the
Custodian may designate in writing to the Trustee and the Servicer.
Section 16. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all times
during the existence of this Custodial Agreement and keep in full force and
effect such insurance in amounts, with standard coverage and subject to
deductibles, all as is customary for insurance typically
10
maintained by banks which act as custodian. The minimum coverage under any
such bond and insurance policies shall be at least equal to the corresponding
amounts required by Xxxxxx Xxx in the Xxxxxx Mae Servicing Guide or by Xxxxxxx
Mac in the Xxxxxxx Mac Seller/Servicer Guide. Upon request, the Trustee shall
be entitled to receive evidence satisfactory to the Trustee that such
insurance is in full force and effect.
Section 17. Counterparts.
For the purpose of facilitating the execution of this Custodial
Agreement as herein provided and for other purposes, this Custodial 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 18. Periodic Statements.
Within ten (10) days of each anniversary of the date of this
Custodial Agreement, or upon the request of the Trustee at any other time, the
Custodian shall provide to the Trustee a list of all the Mortgage Loans for
which the Custodian holds a Custodial File pursuant to this Custodial
Agreement. Such list may be in the form of a copy of the Mortgage Loan
Schedule with manual deletions to specifically denote any Mortgage Loans paid
off, repurchased or sold since the date of this Custodial Agreement.
Section 19. GOVERNING LAW.
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 20. Copies of Mortgage Documents.
Upon the request of the Trustee and at the cost and expense of the
Trust, the Custodian shall provide the Trustee with copies of the Mortgage
Notes, Mortgages, Assignments of Mortgage and other documents relating to one
or more of the Mortgage Loans.
Section 21. No Adverse Interest of Custodian.
By execution of this Custodial Agreement, the Custodian represents
and warrants that it currently holds, and during the existence of this
Custodial Agreement shall hold, no interest adverse to the Trustee, by way of
security or otherwise, in any Mortgage Loan, and hereby waives and releases
any such interest which it may have in any Mortgage Loan as of the date
hereof.
Section 22. Termination by Custodian.
The Custodian may terminate its obligations under this Custodial
Agreement upon at least sixty (60) days' prior written notice to the Servicer
and the Trustee. In the event of such termination, the Servicer shall appoint
a successor Custodian. The payment of such successor
11
Custodian's fees and expenses shall be solely the responsibility of the
Servicer. Upon such appointment, the Custodian shall promptly transfer to the
successor Custodian, as directed, all Custodial Files being administered under
this Custodial Agreement.
Section 23. Term of Agreement.
Unless terminated pursuant to Section 13 or Section 22 hereof,
this Custodial Agreement shall terminate upon the final payment or other
liquidation (or advance with respect thereto) of the last Mortgage Loan or the
disposition of all property acquired upon foreclosure or deed in lieu of
foreclosure of any Mortgage Loan, and the final remittance of all funds due
under the Pooling and Servicing Agreement. In such event all documents
remaining in the Custodial Files shall be released in accordance with the
written instructions of the Trustee.
Section 24. Notices.
All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given when received by the
recipient party at the addresses shown on the first page hereof, and in the
case of the Trustee, to U.S. Bank National Association, 00 Xxxxxxxxxx Xxxxxx,
XX-XX-XX0X, Xx. Xxxx, Xxxxxxxxx 00000-0000, Attention: Structured
Finance-C-BASS 2006-CB2, in the case of the Servicer, to the attention of
Xxxxx X. Xxxxxx, Xx. and in the case of the Custodian, to the attention of
Xxxxx Xxxxxxxx, or at such other addresses as may hereafter be furnished to
the other parties by like notice. Any such demand, notice or communication
hereunder shall be deemed to have been received on the date delivered to or
received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt).
Section 25. Successors and Assigns.
This Custodial Agreement shall inure to the benefit of the
successors and assigns of the parties hereto. Any person into which the
Custodian may be merged or converted or with which the Custodian may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Custodian shall be a party, or any Person
succeeding to the business of the Custodian, shall be the successor of the
Custodian hereunder, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything to the contrary
herein notwithstanding. Any assignee shall forward a list of authorized
representatives to each party to this Custodial Agreement pursuant to Section
29 of this Custodial Agreement.
Section 26. Concerning the Custodian.
Neither the Custodian nor any of its directors, affiliates,
officers, agents, or employees, shall be liable for any action taken or
omitted to be taken by it or them hereunder or in connection herewith in good
faith and believed by it or them to be within the purview of this Custodial
Agreement, except for its or their own gross negligence, bad faith or willful
misconduct. In no event shall the Custodian or its directors, affiliates,
officers, agents, or employees be held liable for any special, indirect or
consequential damages resulting from any action taken or omitted to be taken
by it or them hereunder or in connection herewith, even if advised of the
possibility of such damages.
12
The Servicer agrees to indemnify, from the Servicer's own funds,
and hold the Custodian and its directors, affiliates, officers, agents, and
employees harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or
disbursements of any kind or nature whatsoever, including reasonable
attorneys' fees, that may be imposed on, incurred by or asserted against it or
them in any way relating to or arising out of liabilities, obligations,
judgments, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements other than those which were imposed on, incurred by
or asserted against the Custodian, because of the breach by the Custodian of
its obligations hereunder, which breach was caused by negligence, bad faith,
or willful misconduct on the part of the Custodian or any of its directors,
affiliates, officers, agents, or employees. The indemnification set forth in
this section shall survive any termination of this Custodial Agreement and the
termination and removal of the Custodian.
Section 27. Reliance of Custodian.
In the absence of negligence or bad faith on the part of the
Custodian, the Custodian may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
data communications, magnetic tape, request, instructions, certificate,
opinion or other document furnished to the Custodian, reasonably believed by
the Custodian to be genuine and to have been signed or presented by the proper
party or parties and conforming to the requirements of this Custodial
Agreement; but in the case of any loan document or other request, instruction,
document or certificate which by any provision hereof is specifically required
to be furnished to the Custodian, the Custodian shall be under a duty to
examine the same in accordance with the requirements of this Custodial
Agreement.
Section 28. Transmission of Custodial Files.
Written instructions as to the method of shipment and shipper(s)
the Custodian is directed to utilize in connection with transmission of
mortgage files and loan documents in the performance of the Custodian's duties
hereunder shall be delivered by the Servicer to the Custodian prior to any
shipment of any mortgage files and loan documents hereunder. The Servicer will
arrange for the provision of such services at its sole cost and expense (or,
at the Custodian's option, reimburse the Custodian for all costs and expenses
incurred by the Custodian consistent with such instructions) and will maintain
such insurance against loss or damage to mortgage files and loan documents as
the Servicer deems appropriate.
Section 29. Authorized Representatives.
Each individual designated as an authorized representative of the
Servicer and the Trustee, respectively (an "Authorized Representative"), is
authorized to give and receive notices, requests and instructions and to
deliver certificates and documents in connection with this Custodial Agreement
on behalf of the Servicer or the Trustee, as the case may be, and the specimen
signature for each such Authorized Representative of the Servicer and each
such Authorized Representative of the Trustee initially authorized hereunder,
is set forth on Exhibits 4 and 5 hereof, respectively. From time to time, the
Servicer and the Trustee may, by delivering to each other and to the Custodian
a revised exhibit, change the information previously given
13
pursuant to this Section 29, but each of the parties hereto shall be entitled
to rely conclusively on the then current exhibit until receipt of a
superseding exhibit.
Section 30. Reproduction of Documents.
This Custodial Agreement and all documents relating thereto except
with respect to the Custodial File, including, without limitation, (a)
consents, waivers and modifications which may hereafter be executed, and (b)
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 31. Limitations on the Responsibilities of the Custodian.
(a) The Custodian shall not be liable for any action or omission
to act hereunder except for its own gross negligence, bad faith or willful
misconduct. The obligations of the Custodian shall be determined solely by the
express provisions of this Custodial Agreement. No representation, warranty,
covenant, agreement, obligation or duty of the Custodian shall be implied with
respect to this Custodial Agreement or the Custodian's services.
(b) The Custodian shall not be responsible for preparing or filing
any reports or returns relating to federal, state or local income taxes with
respect to this Custodial Agreement other than for the Custodian's
compensation or for reimbursement of expenses hereunder.
(c) The Custodian shall not be responsible or liable for, and
makes no representation or warranty with respect to, the validity,
recordation, adequacy or perfection of any lien upon or security interest in
any Custodial File.
(d) Any other provision of this Custodial Agreement to the
contrary notwithstanding, the Custodian shall have no notice of and shall not
be bound by any of the terms and conditions of 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 Custodial 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 and conditions (including without limitation definitions
not otherwise set forth in full in this Custodial 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
Custodial Agreement to the extent such terms and provisions are referenced or
incorporated by reference into this Custodial Agreement, only as long as the
Custodian shall have been provided a copy of any such document or agreement.
(e) The duties and obligations of the Custodian shall only be as
much as are expressly set forth in this Custodial Agreement or as set forth in
a written amendment to this Custodial Agreement executed by the parties hereto
or their successors and assigns. In the event that any provision of this
Custodial Agreement implies or requires that action or forbearance
14
from action be taken by a party but is silent as to which party has the duty
to act or refrain from acting, the parties hereto 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 herein.
(f) Nothing in this Custodial Agreement shall be deemed to impose
on the Custodian any duty to qualify to do business in any jurisdiction other
than (i) any jurisdiction where any Custodial File is or may be held by the
Custodian from time to time hereunder, and (ii) any jurisdiction where its
ownership of property or conduct of business requires such qualification and
where failure to qualify could have a material adverse effect on the Custodian
or its property or business or on the ability of the Custodian to perform its
duties hereunder.
(g) Custodian may consult with counsel selected by the Custodian
and the advice or the opinion of such counsel shall be full and complete
authorization and protection in respect of any action reasonably taken,
omitted or suffered by the Custodian in good faith and in accordance herewith.
(h) No provision of this Custodial Agreement shall require the
Custodian to expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties hereunder or in the exercise of any
of its rights and powers (other than with respect to any expense incurred by
the Custodian in accordance with its regular duties as custodian hereunder),
if, in its sole judgment, it believes that repayment of such funds or adequate
indemnity against such risk or liability is not assured to it.
(i) The Custodian shall have no duty to ascertain whether or not
any amount or payment required to be received by the Trustee, the Servicer or
any third person has been received by the Trustee, the Servicer or any third
person.
(j) The Custodian may perform its duties hereunder by or through
agents, attorneys, subcustodians or independent contractors and shall have no
liability for the acts or omissions of such agents, attorneys, subcustodians
or independent contractors appointed by the Custodian with due care; provided,
however, that such appointment of a subcustodian shall not limit the liability
of the Custodian with respect to its obligations under this Custodial
Agreement. The Trustee and the Servicer hereby consent to the appointment of
the Subcustodian to act as subcustodian hereunder.
Section 32. WAIVER OF JURY TRIAL.
EACH OF THE TRUSTEE, THE SERVICER, AND THE CUSTODIAN WAIVES ANY
RIGHT TO TRIAL BY JURY IN ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, BETWEEN OR AMONG ANY OF THE TRUSTEE, THE SERVICER OR THE CUSTODIAN
ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED BY THIS CUSTODIAL
AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED
IN CONNECTION HEREWITH. ANY OF THE TRUSTEE, THE SERVICER, OR THE CUSTODIAN MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS CUSTODIAL AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE
15
CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 33. Regulation AB.
Subsection 33.01. Report on Assessment of Compliance and
Attestation.
On or before March 1 of each calendar year, commencing in 2007,
the Custodian shall:
(i) deliver to the Servicer, the Trustee and the
Depositor a report regarding the Custodian's assessment of
compliance with the applicable Servicing Criteria (as more fully
discussed below), 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 addressed to the
Servicer, the Trustee and the Depositor and signed by an
authorized officer of the Custodian, and shall address each of the
applicable Servicing Criteria;
(ii) deliver to the Servicer, the Trustee and the
Depositor a report of a registered public accounting firm
reasonably acceptable to the Servicer, the Trustee and the
Depositor that attests to, and reports on, the assessment of
compliance made by the Custodian and delivered pursuant to the
preceding paragraph. Such attestation shall be in accordance with
Rules 1-02(a)(3) and 2-02(g) of Regulation S-X under the
Securities Act and the Exchange Act; and
(iii) if requested by the Servicer or the Depositor
not later than February 1 of the calendar year in which such
certification is to be delivered, deliver to the Servicer, the
Depositor and any other Person that will be responsible for
signing the certification (a "Sarbanes Certification") required by
Rules 13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Xxxxxxxx-Xxxxx Act of 2002) a certification
substantially in the form attached hereto as Exhibit 7 (or as
otherwise mutually agreed upon).
The Custodian acknowledges that the parties identified
in clause (a)(iii) above may rely on the certification provided by
the Custodian pursuant to such clause in signing a Sarbanes
Certification and filing such with the Commission. Neither the
Servicer nor the Depositor will request delivery of a
certification under clause (a)(iii) above unless a Depositor is
required under the Exchange Act to file an annual report on Form
10-K with respect to an issuing entity whose asset pool includes
the Mortgage Loans.
Subsection 33.02. Indemnification; Remedies.
(a) The Custodian shall indemnify the Servicer, each affiliate of
the Servicer, and each of the following parties: Credit-Based Asset Servicing
and Securitization LLC, as the sponsor, the issuing entity, the Depositor, the
Trustee, and each Person who controls any of such parties (within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act); and
the respective present and former directors, officers, employees and agents of
each of the foregoing, and shall hold each of them harmless
16
from and against any losses, damages, penalties, fines, forfeitures, legal
fees and expenses and related costs, judgments, and any other costs, fees and
expenses (other than punitive, special or consequential damages) that any of
them may sustain arising out of or based upon any negligent failure by the
Custodian to deliver any information, report, certification, accountants'
letter or other material when and as required under this Section 33.
(b) In the case of any negligent failure of performance described
in clause (a) of this Subsection, the Custodian shall promptly reimburse the
Servicer, the Trustee the 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 the C-BASS Mortgage Loan
Asset-Backed Certificates, Series 2006-CB2 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 the C-BASS Mortgage Loan Asset-Backed Certificates, Series
2006-CB2 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.
17
IN WITNESS WHEREOF, the Servicer, the Trustee and the Custodian
have caused their names to be duly signed hereto by their respective officers
thereunto duly authorized, all as of the date first above written.
U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee for
the C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2006-CB2
By:/s/ X. Xxxxxxxxxxxxxx
--------------------------------------
Name: X. Xxxxxxxxxxxxxx
Title: Vice President
XXXXXX LOAN SERVICING LP,
as Servicer
By:/s/ Xxxxxx XxXxxxx
--------------------------------------
Name: Xxxxxx XxXxxxx
Title: Senior Vice President
THE BANK OF NEW YORK
as Custodian
By:/s/ Xxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT 1
---------
ACKNOWLEDGMENT OF RECEIPT
February ____ , 2006
U.S. Bank National Association
as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB2
00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X
Xx. Xxxx,Xxxxxxxxx 00000-0000
Attention: Structured Finance-C-BASS 2006-CB2
Re: Custodial Agreement, dated as of February 1, 2006, among U.S. Bank
National Association, as Trustee, Xxxxxx Loan Servicing LP, as
Servicer, and The Bank of New York, as Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 4 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies as to each Mortgage Loan in the Mortgage Loan Schedule that
(i) it has received the original Mortgage Note with respect to each Mortgage
Loan identified on the Mortgage Loan Schedule attached hereto as Exhibit 7 and
(ii) such Mortgage Note has been reviewed by it and appears regular on its
face and relates to such Mortgage Loan. The Custodian makes no representations
as to (i) the validity, legality, enforceability, sufficiency, due
authorization or genuineness of any of the documents contained in each
Custodial File or of any of the Mortgage Loans or (ii) the collectability,
insurability, effectiveness or suitability of any such Mortgage Loan.
The Custodian hereby confirms that it is holding each such
Mortgage Note as agent and bailee of, and custodian for the exclusive use and
benefit, and subject to the sole direction, of the Trustee pursuant to the
terms and conditions of the Custodial Agreement.
This Acknowledgment of Receipt is not divisible or negotiable.
The Custodian will accept and act on instructions with respect to
the Mortgage Loans subject hereto upon surrender of this Trust Receipt and
Initial Certification at the office of the Subcustodian at Bank of New York
Trust Company, N.A., 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxxx Xxxxxx.
Capitalized terms used herein shall have the meaning ascribed to
them in the Custodial Agreement.
THE BANK OF NEW
YORK as Custodian
By:
---------------------------------
Name:
Title:
EXHIBIT 2A
----------
TRUST RECEIPT AND INITIAL CERTIFICATION
Trust Receipt #___________
Cut-off Date Principal Balance $___________
U.S. Bank National Association
as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB2
00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance--C-BASS 2006-CB2
Re: Custodial Agreement, dated as of February 1, 2006, among
U.S. Bank National Association, as Trustee, Xxxxxx Loan
Servicing LP, as Servicer, and The Bank of New York, as
Custodian
Ladies and Gentlemen:
In accordance with the provisions of Section 6 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies that as to each Mortgage Loan listed on the Mortgage Loan
Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
listed on the attachment hereto) it has reviewed the Custodial Files and has
determined that: (i) all documents required to be delivered to it pursuant to
Sections 2(a)(i)-(vi) of the Custodial Agreement are in its possession; (ii)
such documents have been reviewed by it; and have not been mutilated, damaged
or torn and relate to such Mortgage Loan (iii) based on its examination and
only as to the foregoing, the information set forth in the Mortgage Loan
Schedule relating to the Mortgage Loan identifying number, the city, state,
and zip code of the Mortgaged Property, the type of Residential Dwelling
constituting the Mortgaged Property or a designation that the Mortgaged
Property is a multi-family property, the original months to maturity, the
Mortgage Interest Rate of the Mortgage Loan as of the Cut-off Date, and
whether the Mortgage Loan has a prepayment penalty accurately reflects
information set forth in the Mortgage File; (iv) all Assignments of Mortgage
or intervening assignments of mortgage, as applicable, have been submitted for
recording; and (v) each Mortgage Note has been endorsed as provided in Section
2(a)(i) of the Custodial Agreement and each Mortgage has been assigned in
accordance with Section 2(a)(iii) of the Custodial Agreement. The Custodian
makes no representations as to (i) the validity, legality, enforceability,
sufficiency, due authorization or genuineness of any of the documents
contained in each Custodial File or of any of the Mortgage Loans or (ii) the
collectability, insurability, effectiveness or suitability of any such
Mortgage Loan.
The Custodian hereby confirms that it is holding each such
Custodial File as agent and bailee of, and custodian for the exclusive use and
benefit, and subject to the sole direction, of Trustee pursuant to the terms
and conditions of the Custodial Agreement.
This Trust Receipt and Initial Certification is not divisible or
negotiable.
The Custodian will accept and act on instructions with respect to
the Mortgage Loans subject hereto upon surrender of this Trust Receipt and
Final Certification at the office of the Subcustodian at Bank of New York
Trust Company, N.A., 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxxxx Xxxxxx.
Capitalized terms used herein shall have the meaning ascribed to
them in the Custodial Agreement.
THE BANK OF NEW YORK
as Custodian
By:
---------------------------------
Name:
Title:
EXHIBIT 2B
----------
TRUST RECEIPT AND FINAL CERTIFICATION
Trust Receipt #__________
Cut-off Date Principal Balance $__________
U.S. Bank National Association
as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2006-CB2
00 Xxxxxxxxxx Xxxxxx, XX-XX-XX0X
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Structured Finance-C-BASS 2006-CB2
Re: Custodial Agreement, dated as of February 1, 2006, among U.S. Bank
National Association, as Trustee, Xxxxxx Loan Servicing LP, as
Servicer, and The Bank of New York, as Custodian
Ladies and Gentlemen:
In accordance with Section 6(b) of the Custodial Agreement, the
undersigned, as Custodian, 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 Schedule I hereto) it has received the applicable documents
listed in Section 2(a) of the Custodial Agreement.
The undersigned hereby certifies that as to each Mortgage Loan
identified on the Mortgage Loan Schedule, other than any Mortgage Loan listed
on Schedule I hereto, it has reviewed the documents listed above and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in the Mortgage Loan
Schedule is correct.
Capitalized words and phrases used herein shall have the
respective meanings assigned to them in the Custodial Agreement. This
Certificate is qualified in all respects by the terms of said Custodial
Agreement.
THE BANK OF NEW YORK,
as Custodian
By:
----------------------------------
Name:
Title:
EXHIBIT 3
---------
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
To: [Address]
Re: Custodial Agreement, dated as of February 1, 2006, among U.S. Bank
National Association, as Trustee, Xxxxxx Loan Servicing LP, as
Servicer, and The Bank of New York, as Custodian
In connection with the administration of the Mortgage Loans held
by you as the Custodian on behalf of the Trustee, we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name Address & Zip Code:
Mortgage Loan Number:
Reason for Requesting Documents (check one)
1. Mortgage Loan Paid in Full. (The Servicer hereby certifies that
----- all amounts received in connection therewith have been credited
to the account of the Trustee.)
2. Mortgage Loan Liquidated By (The Servicer hereby certifies that
----- all proceeds of foreclosure, insurance, condemnation or other
liquidation have been finally received and credited to the
account of the Trustee.)
3. Mortgage Loan in Foreclosure
-----
4. Other (explain)_______________________________________________
-----
If box 1 or 2 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our
previous request and receipt on file with you, as well as any additional
documents in your possession relating to the specified Mortgage Loan.
If box 3 or 4 above is checked, upon our return of all of the
above documents to you as the Custodian, please acknowledge your receipt by
signing in the space indicated below, and returning this form.
XXXXXX LOAN SERVICING LP,
as Servicer
By:
----------------------------------
Name:
Title:
Date:
--------------------------------
Acknowledgment of Documents returned to the Custodian:
THE BANK OF NEW YORK, as Custodian
By:
--------------------------------
Name:
Title:
Date:
-----------------------------
EXHIBIT 4
---------
AUTHORIZED REPRESENTATIVES OF SERVICER
NAME SPECIMEN SIGNATURE
---- ------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
EXHIBIT 5
---------
AUTHORIZED REPRESENTATIVES OF TRUSTEE
NAME SPECIMEN SIGNATURE
---- ------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
-------------------------------------- ------------------------------
EXHIBIT 6
---------
SCHEDULE OF MORTGAGE LOANS
[Attached as Exhibit D to the Pooling and Servicing Agreement]
EXHIBIT 7
FORM OF ANNUAL CERTIFICATION (unless otherwise mutually agreed)
The Custodial Agreement, (the "Agreement") dated as of February 1, 2006,
among U.S. Bank National Association, as Trustee, Xxxxxx Loan Servicing LP, as
Servicer, and The Bank of New York, as Custodian.
I, _________________________________, the _______________________ of The
Bank of New York, certify to Xxxxxx Loan Servicing LP, Bond Securitization,
L.L.C. and U.S. Bank National Association, and their officers, with the
knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the report on assessment of the Custodian's
compliance with the servicing criteria set forth in Items 1122(d)(1)(ii),
1122(d)(1)(iv), 1122(d)(4)(i) and 1122(d)(4)(ii) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered public
accounting firm's attestation report provided in accordance with Rules 13a-18
and 15d-18 under the Exchange Act and Section 1122(b) of Regulation AB (the
"Attestation Report") (collectively, the "Custodian Servicing Information");
(2) Based on my knowledge, the Custodian Servicing Information, taken as
a whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in the light of
the circumstances under which such statements were made, not misleading with
respect to the period of time covered by the Custodian Servicing Information;
(3) Based on my knowledge, all of the Custodian Servicing Information
required to be provided by the Custodian under the Agreement has been provided
to Xxxxxx Loan Servicing LP, Bond Securitization, L.L.C. and U.S. Bank
National Association;
(4) I am responsible for reviewing the activities performed by the
Custodian under the Agreement, and based on my knowledge and the compliance
review conducted in preparing the Compliance Statement and except as disclosed
in the Servicing Assessment or the Attestation Report, the Custodian has
fulfilled its obligations under the Agreement in all material respects; and
(5) The Servicing Assessment and Attestation Report required to be
provided by the Custodian pursuant to the Agreement, have been provided to
Xxxxxx Loan Servicing LP, Bond Securitization, L.L.C. and U.S. Bank National
Association. Any material instances of noncompliance described in such reports
have been disclosed to Xxxxxx Loan Servicing LP, Bond Securitization, L.L.C.
and U.S. Bank National Association. Any material instance of noncompliance
with the Servicing Criteria has been disclosed in such reports.
Date:
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By:
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Name:
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Title:
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