Exhibit 99.1
EXECUTION VERSION
XXXXX FARGO BANK, N.A.
as Custodian
and
HSBC BANK USA, NATIONAL ASSOCIATION
as Trustee
CUSTODIAL AGREEMENT
Dated as of April 1, 2007
Luminent Mortgage Trust 2007-2 Mortgage Pass-Through Certificates, Series 2007-2
TABLE OF CONTENTS
Page
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Section 1. Definitions.........................................................................1
Section 2. Delivery of this Agreement: Delivery of the Custodial Files.........................4
Section 3. Acceptance of Mortgage Loans by Custodian: Review of Documentation..................4
Section 4. Obligations of the Custodian: Ownership of Mortgage Loan Documents..................6
Section 5. Release of Custodial Files..........................................................7
Section 6. Fees of Custodian...................................................................8
Section 7. Removal of Custodian With Respect to Some or All of the Mortgage Loans..............8
Section 8. Transfer of Custodial Files Upon Termination........................................9
Section 9. Examination of Custodial Files......................................................9
Section 10. Insurance of Custodian..............................................................9
Section 11. Counterparts........................................................................9
Section 12. Periodic Statements.................................................................9
Section 13. GOVERNING LAW......................................................................10
Section 14. Copies of Mortgage Documents.......................................................10
Section 15. No Adverse Interest of Custodian...................................................10
Section 16. Termination by Custodian...........................................................10
Section 17. Term of Agreement..................................................................10
Section 18. Notices............................................................................11
Section 19. Successors and Assigns.............................................................13
Section 20. Limitation on Liability............................................................13
Section 21. Custodian Obligations Regarding Genuineness of Documents...........................15
Section 22. Shipment of Documents..............................................................15
Section 23. Authorized Representatives.........................................................15
Section 24. Amendments.........................................................................16
Section 25. Eligibility Requirements for the Custodian.........................................16
Section 26. Reliance of Custodian..............................................................16
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EXHIBITS
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EXHIBIT A MORTGAGE LOAN SCHEDULE
EXHIBIT B-1 FORM OF INITIAL CERTIFICATION
EXHIBIT B-2 FORM OF INTERIM CERTIFICATION
EXHIBIT B-3 FORM OF FINAL CERTIFICATION
EXHIBIT B-4 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT B-5 FORM OF LOST NOTE AFFIDAVIT
EXHIBIT B-6 FORM OF ENDORSEMENT
EXHIBIT C AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT D AUTHORIZED REPRESENTATIVES OF THE TRUSTEE
EXHIBIT E AUTHORIZED REPRESENTATIVES OF THE MASTER SERVICER
EXHIBIT F-1 AUTHORIZED REPRESENTATIVES OF THE SERVICER (Residential Funding Company, LLC)
EXHIBIT F-2 AUTHORIZED REPRESENTATIVES OF THE SERVICER (IndyMac Bank, F.S.B.)
EXHIBIT F-3 AUTHORIZED REPRESENTATIVES OF THE SERVICER (National City Mortgage Co.)
EXHIBIT F-4 AUTHORIZED REPRESENTATIVES OF THE SERVICER (Washington Mutual Bank, FA)
EXHIBIT F-5 AUTHORIZED REPRESENTATIVES OF THE SERVICER (Xxxxx Fargo Bank, N.A.)
EXHIBIT G SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
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This is a Custodial Agreement (the "Agreement"), dated and effective as of
April 1, 2007, by and between Xxxxx Fargo Bank, N.A., as custodian (the
"Custodian"), and HSBC Bank USA, National Association, as trustee (the
"Trustee").
W I T N E S S E T H:
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WHEREAS, the Trustee has entered into a Pooling Agreement dated as of April
1, 2007 (the "Pooling Agreement"), by and among Maia Mortgage Finance Statutory
Trust as seller (the "Seller"), the Trustee, Xxxxx Asset Securitization, Inc.,
as depositor (the "Depositor"), and Xxxxx Fargo Bank, N.A., as master servicer
and securities administrator (in its capacity as master servicer, the "Master
Servicer" and in its capacity as securities administrator, the "Securities
Administrator") pursuant to which the Depositor has conveyed certain Mortgage
Loans identified on the mortgage loan schedules attached as Exhibit A hereto
(each, a "Mortgage Loan Schedule") to the Trustee;
WHEREAS, the Trustee and the Custodian desire that the Custodian shall hold
the Mortgage Loan Documents (as defined herein) on behalf of the Trust in
accordance with the terms hereof, and that the Custodian shall cooperate with
the Master Servicer in the performance of the Master Servicer's duties under the
Pooling Agreement and each applicable Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual agreements hereinafter set
forth, and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the Trustee and the Custodian agree as follows:
Section 1. Definitions.
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All capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Pooling Agreement. The Trustee shall notify the
Custodian of any material changes to such Pooling Agreement that may affect the
rights and obligations of the Custodian set forth herein. Whenever used herein,
the following words and phrases, unless the context otherwise requires, shall
have the following meanings:
Agreement: This Custodial Agreement and all amendments and attachments
hereto and supplements hereof.
Commission: The United States Securities and Exchange Commission.
Custodial File: As to each Mortgage Loan listed on Exhibit A hereto, the
file consisting of the Mortgage Loan Documents described in Sections 2.01 and
2.02 of the Pooling Agreement delivered to the Custodian as of the Closing Date
or which at any time come into the possession of the Custodian pursuant to this
Agreement.
Custodian: Xxxxx Fargo Bank, N.A. or any successor in interest or assign,
or any successor to the Custodian under this Agreement as herein provided.
Electronic Recording: A mortgage or a mortgage-related document created,
generated, sent, communicated, received, or stored by electronic means (that
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complies with the requirements of the Electronic Signatures in Global and
National Commerce Act or the Uniform Electronic Transactions Act, as applicable)
that has been accepted for recording by a participating county land records
office which accepts such electronic record of a mortgage or a mortgage-related
document as an alternative to recordation of the original paper form of such
document.
Final Certification: A final certification as to each Mortgage Loan, which
Final Certification is delivered to the Depositor, the Master Servicer, the
Servicers and the Trustee by the Custodian in accordance with Section 3(d)
hereof and in the form annexed hereto as Exhibit B-3.
Initial Certification: An initial certification as to each Mortgage Loan,
which Initial Certification is delivered to the Depositor, the Master Servicer,
the Servicers and the Trustee by the Custodian in accordance with Section 3(a)
hereof and in the form annexed hereto as Exhibit B-1.
Interim Certification: An interim certification as to each Mortgage Loan,
which Interim Certification is delivered to the Depositor, the Master Servicer,
the Servicers and the Trustee by the Custodian in accordance with Section 3(b)
hereof and in the form annexed hereto as Exhibit B-2.
Master Servicer: Xxxxx Fargo Bank, N.A. or its successors in interest.
MERS: Mortgage Electronic Registration Systems, Inc., a corporation
organized and existing under the laws of the State of Delaware, or any successor
thereto.
MERS Designated Mortgage Loan: Any Mortgage Loan as to which the related
Mortgage or Assignment of Mortgage has been recorded in the name of MERS, as
agent for the holder from time to time of the Mortgage Note and which is
identified as a MERS Mortgage Loan on the related Mortgage Loan Transmission.
MERS Identification Number: The eighteen digit number permanently assigned
to each MERS Mortgage Loan.
Mortgage Loan: An individual Mortgage Loan which is the subject of this
Agreement, each Mortgage Loan originally subject to this Agreement being
identified on the Mortgage Loan Schedule, which Mortgage Loan includes, without
limitation, the Custodial File which shall include the Mortgage Loan Documents
set forth or described in Sections 2.01 and 2.02 of the Pooling Agreement.
Mortgage Loan Documents: Custodial Files delivered to the Custodian
pursuant to this Agreement.
Mortgage Loan Schedule: Each schedule attached hereto as Exhibit A, which
shall identify each Mortgage Loan, as such schedule may be amended from time to
time to reflect the addition of Mortgage Loans to, or the deletion of Mortgage
Loans from, the Trust Fund. Such schedule shall set forth, among other things,
the following information with respect to each Mortgage Loan: (i) the Mortgage
Loan identifying number; (ii) the Mortgagor's name, (iii) the street address of
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the Mortgaged Property, including the city, state and zip code; (iv) the
original principal amount of the Mortgage Loan; (v) the Mortgage Rate at
origination; (vi) the monthly payment of principal and interest at origination;
(vii) the Mortgage Pool in which such Mortgage Loan is included; (viii) the
Servicer servicing such Mortgage Loan and the applicable Servicing Fee Rate;
(ix) the Custodian with respect to the Custodial File related to such Mortgage
Loan; (x) where applicable, whether such Mortgage Loan is covered by a Bulk PMI
Policy and the applicable PMI Insurer and the Insurance Fee Rate; (xi) where
applicable, whether such Mortgage Loan is a Simple Interest Loan; and (xii)
where applicable, whether such Mortgage Loan has an early payment default
repurchase obligation. The Depositor shall be responsible for providing the
Trustee and the Master Servicer with all amendments to each Mortgage Loan
Schedule.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation AB),
17 C.F.R. ss.ss.229.l 100-229.1 123, as such may be amended from time to time,
and subject to such clarification and interpretation as have been provided by
the Commission in the adopting release (Asset-Backed Securities, Securities Act
Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities Administrator: Xxxxx Fargo Bank, N.A. or its successors in
interest.
Seller: Maia Mortgage Finance Statutory Trust under the Pooling Agreement.
Servicer: Each of Residential Funding Company, LLC, IndyMac Bank, F.S.B.,
National City Mortgage Co., Washington Mutual Bank, FA and Xxxxx Fargo Bank,
N.A., and any of their respective successors in interest and assigns.
Servicing Agreement: With respect to Residential Funding Company, LLC, the
Reconstituted Servicing Agreement dated as of May 1, 2007, among the Depositor,
the Seller, the Master Servicer, the Securities Administrator and such Servicer
and acknowledged by the Trustee. With respect to IndyMac Bank, F.S.B., the
Reconstituted Servicing Agreement dated as of May 1, 2007, among the Depositor,
the Seller, the Master Servicer, the Securities Administrator and such Servicer
and acknowledged by the Trustee. With respect to National City Mortgage Co., the
Reconstituted Servicing Agreement dated as of May 1, 2007, among the Depositor,
the Seller, the Master Servicer, the Securities Administrator and such Servicer
and acknowledged by the Trustee. With respect to Washington Mutual Bank, FA, the
Reconstituted Servicing Agreement dated as of May 1, 2007, among the Depositor,
the Seller, the Master Servicer, the Securities Administrator and such Servicer
and acknowledged by the Trustee. With respect to Xxxxx Fargo Bank, N.A., the
Reconstituted Servicing Agreement dated as of May 1, 2007, among the Depositor,
the Seller, the Master Servicer, the Securities Administrator and such Servicer
and acknowledged by the Trustee.
Servicing Officer: Any officer of any Servicer involved in, or responsible
for, the administration and servicing of Mortgage Loans, whose name and specimen
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signature appear on the list of Authorized Representatives annexed as Exhibit
F-l or Exhibit F-2, furnished by the applicable Servicer to the Trustee, the
Custodian and the Depositor on the Closing Date, as such list may from time to
time be amended.
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 the Mortgage Loans but
performs one or more discrete functions identified in Item 1122(d) of Regulation
AB with respect to the Mortgage Loans under the direction or authority of the
Custodian.
Trust: The trust fund created pursuant to the Pooling Agreement and known
as the "Luminent Mortgage Trust 2007-2."
Pooling Agreement: As defined in the first RECITAL of this Agreement.
Section 2. Delivery of this Agreement: Delivery of the Custodial Files.
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(a) On or prior to the Closing Date, the Depositor shall deliver each
Mortgage Loan Schedule to the Custodian. On the Closing Date, the Trustee, the
Depositor and the Custodian shall, if necessary, amend the Mortgage Loan
Schedule. Subsequent to the Closing Date, in the event of any repurchase or
substitution of any Mortgage Loan, the Trustee or the Master Servicer, as
applicable, shall instruct the Custodian in writing to amend the Mortgage Loan
Schedule to reflect the withdrawals and substitutions of Deleted Mortgage Loans
from this Agreement, and provide a copy of the applicable certificate from the
Depositor or Master Servicer regarding such withdrawal of a Deleted Mortgage
Loan from this Agreement; and in the case of any substitution of a Mortgage
Loan, to reflect the addition of any Qualifying Substitute Mortgage Loan to this
Agreement. The Mortgage Loans set forth in the Mortgage Loan Schedule from time
to time shall be subject to this Agreement.
(b) Any Opinion of Counsel delivered by the Depositor pursuant to this
Section shall be accompanied by an Officer's Certificate of the Depositor, upon
which the Custodian shall be entitled to conclusively rely, to the effect that
the Depositor has delivered such Opinion of Counsel to the Trustee and such
Opinion is acceptable to both. From time to time, the Trustee, the Master
Servicer or a Servicer will forward to the Custodian additional documents
pursuant to the Pooling Agreement, as applicable, or the applicable Servicing
Agreement or additional documents evidencing an assumption, modification or
extension of a Mortgage Loan approved by the Master Servicer or the applicable
Servicer in accordance with the Pooling Agreement, as applicable, and the
applicable Servicing Agreement.
(c) For Mortgage Loans (if any) that have been prepaid in full after the
Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering
the above documents, herewith delivers to the Custodian an Officer's Certificate
which shall include a statement to the effect that all amounts received in
connection with such prepayment that are required to be deposited in the
Distribution Account pursuant to Section 8.01(d) of the Pooling Agreement have
been so deposited.
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Section 3. Acceptance of Mortgage Loans by Custodian: Review of
-------------------------------------------------------------
Documentation.
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(a) The Custodian, by execution and delivery hereof, acknowledges receipt
of the Custodial Files pertaining to the Mortgage Loans listed on the Mortgage
Loan Schedule, subject to review thereof by the Custodian, on behalf of the
Trustee, under this Section 3. The Custodian, on behalf of the Trustee, shall
execute and deliver on the Closing Date an Initial Certification in the form
annexed hereto as Exhibit B-1.
(b) Within 45 days after the Closing Date, the Custodian shall, on behalf
of the Trustee and for the benefit of Holders of the Certificates, review each
Custodial File to ascertain that all required documents set forth in Section 2
hereof have been received and appear on their face to contain the requisite
signatures by or on behalf of the respective parties thereto, and shall deliver
to the Depositor, the Master Servicer, the applicable Servicer and the Trustee
an Interim Certification in the form annexed hereto as Exhibit B-2 to the effect
that, as to each Mortgage Loan listed in each Mortgage Loan Schedule (other than
any Mortgage Loan prepaid in full or any Mortgage Loan specifically identified
in such certification as not covered by such certification), (i) all of the
applicable documents specified in Sections 2.01 and 2.02 of the Pooling
Agreement are in its possession and (ii) such documents have been reviewed by it
and appear to relate to such Mortgage Loan. The Custodian shall review the
documents to see that they are executed and are endorsed as in Sections 2.01 and
2.02 of the Pooling Agreement, but shall be under no duty or obligation to
inspect, review or examine any such documents, instruments, certificates or
other papers to determine that the same are valid, binding, legally effective,
properly endorsed, genuine, enforceable or appropriate for the represented
purpose or that they have actually been recorded or are in recordable form or
that they are other than what they purport to be on their face. The Custodian
shall have no responsibility for verifying the genuineness or the legal
effectiveness of or authority for any signatures of or on behalf of any party or
endorser. Such Interim Certification shall supersede all Initial Certifications
relating to the same Custodial File.
(c) If in the course of the review described in paragraph (b) above the
Custodian discovers any document or documents constituting a part of a Custodial
File that is missing, does not appear regular on its face (i.e., is mutilated,
damaged, defaced, xxx or otherwise physically altered except to alterations
which the related borrower has given its written consent) or appears to be
unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule (each,
a "Material Defect"), the Custodian shall promptly identify the Mortgage Loan to
which such Material Defect relates in the Interim Certification delivered to the
Depositor, the Master Servicer, the applicable Servicer and the Trustee.
(d) Within 180 days following the Closing Date, the Custodian shall deliver
to the Depositor, the Master Servicer, the applicable Servicer and the Trustee a
Final Certification substantially in the form annexed hereto as Exhibit B-3
evidencing the completeness of the Custodial Files in its possession or control.
Such Final Certification shall supersede all Initial and Interim Certifications
relating to the same Custodial File.
(e) For purposes of the determinations required to be made by the Custodian
pursuant to paragraphs (a) through (d) of this Section 3, the Custodian shall be
entitled, but not obligated, to conclusively rely upon the diskette, tape or
other electronic media (the "Data File") provided by or on behalf of the
Depositor with respect to the Mortgage Loans as to whether (i) any guarantee was
executed in connection with any Mortgage Loan, (ii) any assumption, modification
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or substitution agreement was executed in connection with any Mortgage Loan,
(iii) primary mortgage guaranty insurance is required with respect to any
Mortgage Loan or (iv) any security agreement, chattel mortgage or equivalent
instrument was executed in connection with any Mortgage Loan.
(f) If, during the term of this Agreement, the Custodian discovers any
defect with respect to any Custodial File, the Custodian shall give written
specifications of such defect to the Trustee. In accordance with the provisions
of the underlying Purchase Agreements, the applicable Originator will be
responsible for completing or correcting any missing, incomplete or inconsistent
documents, and the Custodian shall not be responsible or liable hereunder for
completing or correcting any missing, incomplete or inconsistent documents,
causing the applicable Servicer or any other person or entity to do so or
notifying any person that any such action has or has not been taken.
(g) With respect to any Mortgage File, the Custodian need not make a
determination with respect to any assignment of mortgage relating to any
purchased asset that it is a MERS Mortgage Loan, nor shall the Custodian be
responsible for verifying that the loan is actively registered with MERS.
Section 4. Obligations of the Custodian: Ownership of Mortgage Loan
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Documents.
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(a) With respect to each Custodial File that is delivered to the Custodian
or that comes into the possession of the Custodian pursuant to this Agreement,
the Custodian acknowledges and agrees that the Custodian is the custodian for
the Trustee exclusively and that the Trustee of the Mortgage Loans has the legal
right to, at any time and in its absolute discretion, direct, in writing, the
Custodian to release any Custodial File or all Custodial Files to the Trustee or
the Trustee's designee, as the case may be, at such place or places as the
Trustee may designate. The Custodian shall hold each Custodial File received by
it for the exclusive use and benefit of the Trustee, and shall make disposition
thereof only in accordance with this Agreement and the written 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 (two-hour fire
rated) for such custody. The Custodian shall conduct, or cause to be conducted,
periodic audits of the Custodial Files held by it under this Agreement in
accordance with this Agreement and of the related accounts, records and computer
systems, in such a manner as shall allow the Trustee to verify the accuracy of
the Custodian's record keeping. 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 collectibility, 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
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.
(b) On or before March 1st of each calendar year, beginning with March 1,
2008, the Custodian shall, at its own expense, cause a firm of independent
public accountants (who may also render other services to Custodian), which is a
member of the American Institute of Certified Public Accountants, to furnish to
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the Depositor, the Securities Administrator and the Master Servicer a report to
the effect that such firm that attests to, and reports on, the assessment made
by such asserting party pursuant to Section 4(c) below, which report shall be
made in accordance with standards for attestation engagements issued or adopted
by the Public Company Accounting Oversight Board.
(c) On or before March 1st of each calendar year, beginning with March 1,
2008, the Custodian shall deliver to the Master Servicer, the Securities
Administrator and the Depositor a report regarding its assessment of compliance
with the servicing criteria identified in Exhibit G attached hereto, as of and
for the period ending the end of the fiscal year ending no later than December
31 of the year prior to the year of delivery of the report, with respect to
asset-backed security transactions taken as a whole in which the Custodian is
performing all of the servicing criteria specified in Exhibit G. Each such
report shall include (a) a statement of the party's responsibility for assessing
compliance with the servicing criteria applicable to such party, (b) a statement
that such party used the criteria identified in Item 1122(d) of Regulation AB
(ss. 229.1122(d)) to assess compliance with the applicable servicing criteria,
(c) disclosure of any material instance of noncompliance identified by such
party, and (d) a statement that a registered public accounting firm has issued
an attestation report on such party's assessment of compliance with the
applicable servicing criteria, which report shall be delivered by the Custodian
as provided in this Section 4(c).
(d) The Custodian has not and shall not engage any Subcontractor which is
"participating in the servicing function" within the meaning of Item 1122 of
Regulation AB, unless such Subcontractor provides, beginning March 1, 2008, and
annually thereafter, a report and a statement of a registered public accounting
firm certifying its compliance with the applicable servicing criteria in Item
1122(d) of Regulation AB.
Section 5. Release of Custodial Files.
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(a) Upon (i) becoming aware of the payment in full of any Mortgage Loan or
(ii) the receipt by the Master Servicer or the applicable Servicer of a
notification that payment in full has been escrowed in a manner customary for
such purposes for payment to Certificateholders on the next applicable
Distribution Date, the Master Servicer, pursuant to the Pooling Agreement shall,
or shall cause the applicable Servicer to, promptly notify the Custodian by a
certification (which certification will include a statement to the effect that
all amounts received in connection with such payment that are required to be
deposited in the Collection Account or custodial account maintained by the
Master Servicer or the applicable Servicer pursuant to the Pooling Agreement or
the applicable Servicing Agreement have been or will be deposited) of a
Servicing Officer and shall request the Custodian, on the request for release
and receipt substantially in the form of Exhibit B-4 (or an electronic version
mutually acceptable to the Custodian and the applicable Servicer), to deliver to
the Master Servicer or the applicable Servicer, as the case may be, the related
Custodial File. Upon receipt of such certification and request, the Custodian
shall promptly release and send via overnight mail the related Custodial File
within three Business Days to the applicable Servicer and the Custodian shall
have no further responsibility with regard to such Custodial File.
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(b) The Custodian shall, upon request of the Master Servicer or the
applicable Servicer and delivery to the Custodian of a request for release and
receipt signed by a Servicing Officer substantially in the form of Exhibit B-4
(or an electronic version acceptable to the Custodian) for the purposes of
servicing the Custodial File, release within three Business Days the related
Custodial File held in its possession or control to the Master Servicer or the
applicable Servicer. Such release shall obligate the Master Servicer or the
applicable Servicer to return the Custodial File to the Custodian when the need
therefor by the Master Servicer or the applicable Servicer no longer exists
unless the Mortgage Loan shall be liquidated, in which case, upon receipt of a
certificate of a Servicing Officer similar to that hereinabove specified, the
Custodial File shall be released by the Custodian to the Master Servicer or the
applicable Servicer.
Section 6. Fees of Custodian.
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All fees of the Custodian for its services under this Agreement as agreed
upon by the Custodian and the Master Servicer will be paid by the Master
Servicer from its own funds. The Custodian shall be entitled to reimbursement of
all reasonable expenses incurred by the Custodian (including but not limited to
counsel fees and the indemnification provided for in Section 8.08 of the Pooling
Agreement) by the Trust Fund, which reimbursements will be made by the
Securities Administrator from funds in the Distribution Account. The Custodian
agrees that it will continue to act as Custodian hereunder and perform its
duties hereunder, and if after a 60-day period the Master Servicer has failed to
pay the Custodian's fees, the Custodian may seek repayment of such fees from the
Securities Administrator who will pay such fees from amounts on deposit in the
Distribution Account prior to any distributions to Certificateholders pursuant
to Section 8.05 of the Pooling Agreement.
Section 7. Removal of Custodian With Respect to Some or All of the Mortgage
----------------------------------------------------------------
Loans.
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With or without cause, the Trustee may with 60 days' notice to the
Custodian remove and discharge the Custodian from the performance of its duties
under this Agreement with cause, or at the direction of the Depositor, without
cause, with respect to any or all of the Mortgage Loans by written notice from
the Trustee to the Custodian, with a copy to the Depositor, the Master Servicer
and all applicable Servicers and delivery of all outstanding Final
Certifications. Having given notice of such removal, the Trustee promptly shall,
by written instrument, with a copy to the Depositor and the applicable
Servicer(s) and an original to the successor custodian or document custodian,
(i) appoint a successor custodian to act on behalf of the Trustee to replace the
Custodian under this Agreement, (ii) designate a document custodian to receive
the Custodial Files with respect to the Mortgage Loans removed from this
Agreement, or (iii) take delivery of the Custodial Files. The Trustee's
appointment of a successor custodian or document custodian shall be subject to
the consent of the Depositor, which consent shall not be unreasonably withheld.
In the event of any such removal, the Custodian shall promptly transfer to the
successor custodian, as directed, all affected Custodial Files. In the event of
removal of the Custodian for cause and the appointment of a successor custodian
under this Agreement, the expenses of transferring the Custodial Files to the
successor custodian shall be at the expense of the Custodian. In the event of
removal of the Custodian without cause by the Trustee and the appointment of a
successor custodian under this Agreement, the Master Servicer, on behalf of the
Depositor, shall be responsible for the expenses of transferring the Custodial
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Files to the successor custodian. In all cases, the fees of the successor
custodian hereunder shall be paid by the Master Servicer on behalf of the
Depositor or, if the Master Servicer fails to pay such fees, then as provided in
Section 6 above. Notwithstanding the foregoing, this Agreement shall remain in
full force and effect with respect to any Mortgage Loans for which this
Agreement is not terminated hereunder.
Section 8. Transfer of Custodial Files Upon Termination.
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If the Custodian is notified by the Trustee that the Pooling Agreement has
been terminated, 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 9. Examination of Custodial Files.
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Upon reasonable (but in no event less than two Business Days) prior written
notice to the Custodian, the Master Servicer, each Servicer and the Trustee and
their respective agents, accountants, attorneys, auditors and prospective
purchasers will be permitted during the Custodian's 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 at the expense of the requesting party.
Section 10. Insurance of Custodian.
----------------------
At its own expense, the Custodian shall maintain at all times during the
existence of this Agreement and keep in full force and effect fidelity
insurance, theft of documents insurance, forgery insurance and errors and
omissions insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, as is customary for insurance typically
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 Mortgage-Backed Securities Selling and
Servicing Guide or by Xxxxxxx Mac in the Xxxxxxx Mac Owner's & Servicer's Guide.
A certificate of the respective insurer as to each such policy, with a copy of
such policy attached, shall be furnished to the Trustee, upon request,
containing the statement of the insurer or endorsement evidencing that such
insurance shall not terminate prior to receipt by the Trustee, by registered
mail, of 30 days' prior written notice thereof.
Section 11. Counterparts.
------------
For the purpose of facilitating the execution of this Agreement as herein
provided and for other purposes, this Agreement may be executed simultaneously
in any number of counterparts, each of which counterparts shall be deemed to be
an original, and such counterparts shall constitute one and the same instrument.
Section 12. Periodic Statements.
-------------------
On or before December 31 of each year, 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
9
Agreement. Such list may be in the form of a copy of the Mortgage Loan Schedule
with manual additions and deletions to specifically denote any Mortgage Loans
substituted, paid off or repurchased since the date of this Agreement.
Section 13. 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 CONFLICT OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 14. Copies of Mortgage Documents.
----------------------------
Upon the request of the Master Servicer, any Servicer or the Trustee and at
the expense of the Master Servicer, the Custodian shall provide, within two
Business Days, the requestor with copies of the Mortgage Notes, Mortgages,
Assignments of Mortgages and other documents relating to any or all of the
Mortgage Loans.
Section 15. No Adverse Interest of Custodian.
--------------------------------
By execution of this Agreement, the Custodian represents and warrants that
it currently holds, and during the existence of this Agreement shall hold, no
adverse interest, 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 16. Termination by Custodian.
------------------------
The Custodian may terminate its obligations under this Agreement upon at
least 60 days' notice to the Depositor, the Master Servicer, each Servicer and
the Trustee. The costs associated with the termination of this Agreement by the
Custodian, including all costs associated with the transfer of the Custodial
Files, shall be borne by the Custodian. In the event of such termination, the
Trustee shall promptly appoint a successor custodian. The Trustee shall provide
notification of a successor custodian to the Master Servicer and each Servicer.
The Trustee's appointment of a successor custodian shall be subject to the
consent of the Depositor, which consent shall not be unreasonably withheld. The
payment of such successor custodian's fees and expenses with respect to each
Mortgage Loan shall be solely the responsibility of the Master Servicer. Upon
such appointment the Custodian shall promptly transfer to the successor
custodian, as directed, all Custodial Files being administered under this
Agreement. If no successor is so appointed and approved by the end of such 60
day period, the Custodian shall be entitled to petition a court of competent
jurisdiction for the appointment of a successor custodian. The Master Servicer
shall be responsible for the payment or reimbursement of such successor
custodian's reasonable fees and expenses in connection with the performance of
such successor custodian's obligations under this Agreement.
10
Section 17. Term of Agreement.
-----------------
Unless terminated pursuant to Section 7, Section 8 or Section 16 hereof,
this 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 the Trustee under the
Pooling Agreement. In such event, all documents remaining in the Custodial Files
shall be released in accordance with the written instructions of the Trustee.
Section 18. Notices.
-------
Any demand, notice, consent, report, statement or any other 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). All
demands, notices, consents, reports, statements and any other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed, by registered or certified mail, return receipt requested, or, if by
other means, when received by the recipient party at the address shown below, or
at such other addresses as may hereafter be furnished to the other parties by
like notice:
(i) if to the Custodian:
Xxxxx Fargo Bank, N.A.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Account Manager, Luminent 2007-2
or such other address as may hereafter be furnished to the Trustee in
writing by the Custodian;
(ii) if to the Master Servicer:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Luminent 2007-2
Facsimile: (000) 000-0000
(iii) if to the Trustee:
HSBC Bank USA, National Association
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Corporate Trust & Loan Agency/Luminent 2007-2
11
with a copy to the Seller:
c/o Maia Mortgage Finance Statutory Trust
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(iv) if to the Securities Administrator:
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx, XX 00000
Attention: Luminent 2007-2
Telephone: (000) 000-0000
(v) if to the Servicers:
(A) Residential Funding Company, LLC
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Legal Department
with a copy to:
Residential Funding Company, LLC
0000 X. Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Servicing Manager (Luminent 2007-2)
(B) IndyMac Bank, F.S.B.
0000 X. Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attention: Secondary Marketing -- Transaction
Management
(C) National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
(D) Washington Mutual Bank
0000 Xxxxxx Xxxxxx, XXX 3501
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
12
(E) Xxxxx Fargo Bank, N.A.
1 Home Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxx, MAC X2401-042
Section 19. Successors and Assigns.
----------------------
This Agreement shall inure to the benefit of the successors and assigns of
the parties hereto, subject to the limitations herein provided. The Trustee
shall have the right, subject to the terms of the Pooling Agreement, without the
consent of the Custodian or the Depositor (but with notice in writing to the
Custodian), to assign, in whole or in part, its interest under this Agreement
with respect to the Mortgage Loans to one or more parties including the
Depositor and affiliates thereof, each of which in turn may assign, and in the
case of the Depositor shall assign, its interest under this Agreement with
respect to the Mortgage Loans to one or more parties, and such parties shall
succeed to the rights of the Trustee under this Agreement with respect to the
applicable Mortgage Loans. All references to the Trustee in this Agreement shall
be deemed to include its assignee or designee and any subsequent assignee,
specifically including the Depositor and the Trustee. The Custodian shall have
the right to assign, in whole or in part, its interest under this Agreement only
with the prior written consent of the Trustee and the Depositor or in accordance
with Section 16 hereof.
Section 20. Limitation on Liability.
-----------------------
(a) Neither the Custodian nor any of its directors, 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 (which
belief may be based upon the opinion or advice of counsel selected by it in the
exercise of reasonable care) by it or them to be within the purview of this
Agreement, except for its or their own negligence, bad faith or willful
misconduct. The Custodian and any director, officer, employee or agent of the
Custodian may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters arising
hereunder. In no event shall the Custodian or its directors, officers, agents
and employees be held liable for any special, indirect, incidental, punitive 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.
(b) Notwithstanding anything herein to the contrary, the Custodian agrees
to indemnify the Trust Fund, the Trustee, the Master Servicer, each Servicer and
each of their respective officers, and directors for any and all liabilities,
obligations, losses, damages, payments, costs or expenses of any kind whatsoever
that may be imposed on, incurred by or asserted against the Trustee or Trust
Fund, due to any act or omission by the Custodian with respect to the Custodial
Files which constitutes negligence, bad faith or willful misconduct on the part
of the Custodian; provided, however, that the Custodian shall not be liable to
any of the foregoing Persons for any amount and any portion of any such amount
resulting from the willful misconduct, lack of good faith or negligence of such
Person.
13
(c) The Custodian and its directors, officers, employees and agents shall
be entitled to indemnification and defense from the Trust Fund for any loss,
liability or expense incurred without negligence, willful misconduct, bad faith
on their part, arising out of, or in connection with, the acceptance or
administration of the custodial arrangement created hereunder, including the
costs and expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or duties
hereunder.
(d) The provisions of this Section 20 shall survive the termination of this
Custodial Agreement.
(e) The Custodian agrees to indemnify the Depositor, the Trustee, the
Master Servicer, the Securities Administrator, the Trust Fund and each of their
respective directors, officers, and employees and the Trust Fund and hold each
of them harmless from and against any losses, damages, penalties, fines,
forfeitures, legal fees and expenses and related costs, judgments, and any other
costs, fees and expenses that any of them may sustain arising out of or based
upon the engagement of any Subcontractor in violation of Section 4(d) or any
failure by the Custodian to deliver any information, report, certification,
accountants' letter or other material when and as required under this Agreement,
including any report under Sections 4(b) or 4(c).
(f) 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 Agreement, other than for the Custodian's compensation or for
reimbursement of expenses.
(g) 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 upon or security interest in any Mortgage Loan.
(h) The Custodian shall not be responsible for delays or failures in
performance resulting from acts beyond its control. Such acts shall include, but
not be limited to, acts of God, strikes, lockouts, riots, acts of war or
terrorism, epidemics, governmental or regulatory actions, fire, communication
line failures, computer viruses, power failures, or earthquakes (each a "Force
Majeure Event"). The Custodian agrees that it will use commercially reasonable
efforts to mitigate the effects of the Force Majeure Event. The Custodian
further agrees that it shall give notice (including a reasonable description of
such Force Majeure Event) to the other parties hereto within a reasonable time
but in no event later than two Business Days of the Custodian having notice or
knowledge of such Force Majeure Event and use its best efforts to resume
performance as promptly as practicable under the circumstances. Custodian
further represents that it has developed and implemented a business continuity
plan as required by its regulators.
(i) The duties and obligations of the Custodian shall only be such as are
expressly set forth in this Agreement or as set forth in a written amendment to
this Agreement executed by the parties hereto or their successors and assigns.
In the event that 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 herein.
14
(j) Nothing in this Agreement shall be deemed to impose on the Custodian
any duty to qualify to do business in any jurisdiction, other than (i) any
jurisdiction where any Mortgage Loan is or may be held by the Custodian from
time to time hereunder, and (ii) any jurisdiction where its ownership of
property or conduct of business requires such qualification and where failure to
qualify could have a material adverse effect on the Custodian or its property or
business or on the ability of the Custodian to perform it duties hereunder.
(k) Except as provided by the terms of the Pooling Agreement, the Custodian
shall have no duty to ascertain whether or not any cash amount or payment has
been received by the Trustee, or any third person.
Section 21. Custodian Obligations Regarding Genuineness of Documents.
--------------------------------------------------------
In the absence of 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 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 Agreement, provided that
the provisions of this Section shall not in any manner limit or reduce the
responsibilities of the Custodian under Section 3 hereof.
Section 22. Shipment of Documents.
---------------------
Written instructions as to the method of shipment and the shipper(s) that
the Custodian is directed to utilize in connection with transmission of Mortgage
Loan Documents in the performance of the Custodian's duties hereunder shall be
delivered by the Depositor to the Custodian prior to any shipment of any
Mortgage Loan Documents hereunder or if written direction is not provided, the
Custodian will utilize a nationally recognized courier for the shipment of
documents. The Seller 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
Custodial Files and Mortgage Loan Documents as the Depositor deems appropriate.
Without limiting the generality of the provisions of Section 20 above, it is
expressly agreed that in no event shall the Custodian have any liability for any
losses or damages to any person or property, arising out of actions of the
Custodian properly taken pursuant to instructions of the Trustee.
Section 23. Authorized Representatives.
--------------------------
Each individual designated as an authorized representative of the
Custodian, the Trustee, the Master Servicer or any Servicer (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 Custodian, the Trustee, the Master Servicer
and all applicable Servicers, respectively, and the specimen signature for each
such Authorized Representative of the Custodian, the Trustee, the Master
Servicer and the Servicers initially authorized hereunder is set forth on
Exhibits C, D, E and F respectively. From time to time, the Custodian, the
Trustee, the Master Servicer or any Servicer may, by delivering to the others a
15
revised exhibit, change the information previously given pursuant to this
Section, but each of the parties hereto shall be entitled to rely conclusively
on the then current exhibit until receipt of a superseding exhibit.
Section 24. Amendments.
----------
This Agreement may be amended or modified from time to time by the Trustee
and the Custodian, with prior notice by the Trustee to the Master Servicer, each
Servicer, the Securities Administrator and the Depositor. In the event of an
amendment to the Pooling Agreement, the Depositor shall provide a copy of such
amendment to the Custodian. No amendments or modifications to the Pooling
Agreement that have an impact on this Agreement shall be effective unless agreed
to in writing by the Custodian.
Section 25. Eligibility Requirements for the Custodian.
------------------------------------------
The Custodian and any successor custodian shall at all times (i) be a
depository institution subject to supervision or examination by a federal or
state authority, (ii) have a combined capital and surplus of at least
$15,000,000 and (iii) be qualified to do business in all applicable
jurisdictions in which it engages in business. In case at any time the Custodian
shall cease to be eligible in accordance with the provisions of this Section,
the Custodian shall resign immediately in the manner and with the effect
specified in Section 16.
Section 26. Reliance of Custodian.
---------------------
(a) The Custodian may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any 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 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 Custodial shall be
under a duty to examine the same to determine, subject to the limitations of the
Custodian's obligations set forth herein, whether or not it conforms to the
requirements of this Agreement.
(b) The Custodian shall have no duties or responsibilities except those
that are specifically set forth in this Agreement. The Custodian shall have no
responsibility nor duty with respect to any Mortgage Loan while such Mortgage
Loan is not in its possession. If the Custodian requests instructions from the
Trustee with respect to any act, action or failure to act in connection with
this Agreement, the Custodian shall be entitled to refrain from taking such
action and continue to refrain from acting unless and until the Custodian shall
have received written instructions from the Trustee with respect to a Mortgage
Loan without incurring any liability therefore to the Trustee or any other
Person.
(c) Other than as provided herein, neither the Custodian nor any of its
directors, officers, agents or employees shall be liable for any action or
omission to act hereunder except for its or their own negligence or bad faith or
willful misconduct. In no event shall the Custodian or any of its directors,
officers, agents or employees have any responsibility to ascertain or take
action except as expressly provided herein.
16
(d) Neither the Custodian nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it in good faith
in the performance of its obligations under this Agreement. The obligations of
the Custodian or any of directors, officers, agents or employees shall be
determined solely by the express provisions of this Agreement. No
representation, warranty, covenant, agreement, obligation or duty of the
Custodian or any of its directors, officers, agents or employees shall be
implied with respect to this Agreement or the Custodian's services hereunder.
(e) The Custodian, its directors, officers, agents and employees shall be
under no duty or obligation to inspect, review or examine the Mortgage Loan to
determine that the contents thereof are genuine, enforceable or appropriate for
the represented purpose or that they have been actually recorded or that they
are other than what they purport to be on their face.
(f) The Custodian may consult with counsel selected by the Custodian with
regard to legal questions arising out of or in connection with this Agreement,
and the advice or 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 therewith.
(g) No provision of this Agreement shall require the Custodian to expend or
risk its own funds or otherwise incur financial liability (other than expenses
or liabilities otherwise required to be incurred by the express terms of this
Agreement) in the performance of its duties under this Agreement if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity is not reasonably assured to it.
(h) Any corporation into which the Custodian may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Custodian shall be a party, or any
corporation succeeding to the business of the Custodian shall be the successor
of the Custodian hereunder without the execution or filing of any paper with any
party hereto or any further act on the part of any of the parties hereto except
where an instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
[SIGNATURE PAGES FOLLOW]
17
IN WITNESS WHEREOF, the Trustee and the Custodian have caused their names
to be signed hereto by their respective officers thereunto duly authorized, all
as of the day and year first above written.
XXXXX FARGO BANK, N.A.,
as Custodian
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as Trustee
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Officer
Agreed to and Acknowledged by:
XXXXX ASSET SECURITIZATION, INC.,
as Depositor
By: /s/ Xxxxxxxxxxx X. Xxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxx
Title: Chief Financial Officer
EXHIBIT A
MORTGAGE LOAN SCHEDULE
[On file with Hunton & Xxxxxxxx LLP]
Exhibit X-0
XXXXXXX X-0
FORM OF INITIAL CERTIFICATION
--------------------
Date
HSBC Bank USA, National Association IndyMac Bank, F.S.B.
000 Xxxxx Xxxxxx 0000 X. Xxxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Corporate Trust & Loan Attention: Secondary Marketing --
Agency/Luminent 2007-2 Transaction Management
Maia Mortgage Finance Statutory Trust National City Mortgage Co.
000 Xxxxxxxxxx Xx., 00xx Xxxxx 0000 Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Fargo Bank, N.A. Washington Mutual Bank
0000 Xxx Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx, XXX 3501
Columbia, MD 21045 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Residential Funding Company, LLC Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, 1 Home Campus
Suite 250 Des Moines, IA 50328-0001
Xxxxxxxxxxx, XX 00000 Attention: Xxxx X. Xxxxx, MAC X2401-042
Attention: Legal Department
Re: Custodial Agreement dated as of April 1, 2007 (the "Custodial
Agreement"), between HSBC Bank USA, National Association, as Trustee,
and Xxxxx Fargo Bank, N.A., as Custodian, with respect to Luminent
Mortgage Trust 2007-2 Mortgage Pass-Through Certificates. Series
2007-2
Ladies and Gentlemen:
In accordance with Section 3 of the Custodial Agreement, subject to review
of the contents thereof, the undersigned, as Custodian, hereby certifies that it
has received the applicable documents listed in Sections 2.01 and 2.02 of the
Pooling Agreement for each Custodial File pertaining to each Mortgage Loan
listed on each Mortgage Loan Schedule attached as Exhibit A to the Custodial
Agreement, subject to any exceptions noted on Schedule I hereto.
Exhibit B-1-1
Capitalized words and phrases used but not otherwise defined herein shall
have the respective meanings assigned to them in the Custodial Agreement. This
Certification is subject in all respects to the terms of Section 3 of the
Custodial Agreement and the Custodial Agreement sections cross-referenced
therein.
XXXXX FARGO BANK, N.A.,
as Custodian
By: ___________________________
Name:
Title:
Exhibit B-1-2
EXHIBIT B-2
FORM OF INTERIM CERTIFICATION
--------------------
Date
HSBC Bank USA, National Association IndyMac Bank, F.S.B.
000 Xxxxx Xxxxxx 0000 X. Xxxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Corporate Trust & Loan Attention: Secondary Marketing --
Agency/Luminent 2007-2 Transaction Management
Maia Mortgage Finance Statutory Trust National City Mortgage Co.
000 Xxxxxxxxxx Xx., 00xx Xxxxx 0000 Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Fargo Bank, N.A. Washington Mutual Bank
0000 Xxx Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx, XXX 3501
Columbia, MD 21045 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Residential Funding Company, LLC Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, 1 Home Campus
Suite 250 Des Moines, IA 50328-0001
Xxxxxxxxxxx, XX 00000 Attention: Xxxx X. Xxxxx, MAC X2401-042
Attention: Legal Department
Re: Custodial Agreement dated as of April 1, 2007 (the "Custodial
Agreement"), between HSBC Bank USA, National Association, as Trustee,
and Xxxxx Fargo Bank, N.A., as Custodian, with respect to Luminent
Mortgage Trust 2007-2 Mortgage Pass-Through Certificates. Series
2007-2
Ladies and Gentlemen:
In accordance with Section 3 of the Custodial Agreement, the undersigned,
as Custodian, hereby certifies that as to each Mortgage Loan listed on each
Mortgage Loan Schedule attached as Exhibit A thereto (other than any Mortgage
Loan paid in full or listed on Schedule I hereto), it received the applicable
documents listed in Sections 2.01 and 2.02 of the Pooling Agreement.
Exhibit B-2-1
The undersigned hereby certifies that as to each Mortgage Loan listed on
the Mortgage Loan Schedule attached as Exhibit A thereto (other than any
Mortgage Loan paid in full or listed on Schedule I hereto), it has reviewed the
documents listed in Sections 2.01 and 2.02 of the Pooling Agreement and has
determined that each such document appears regular on its face, appears to
contain the required signatures by or on behalf of the mortgagor and the
mortgagee, and appears to relate to the Mortgage Loan identified in such
documents.
Capitalized words and phrases used but not otherwise defined herein shall
have the respective meanings assigned to them in the Custodial Agreement. This
Certification is qualified in all respects by the terms of the Custodial
Agreement including, but not limited to, Section 3 thereof.
XXXXX FARGO BANK, N.A.,
as Custodian
By: ____________________________
Name:
Title:
Exhibit X-0-0
XXXXXXX X-0
FORM OF FINAL CERTIFICATION
--------------------
Date
HSBC Bank USA, National Association IndyMac Bank, F.S.B.
000 Xxxxx Xxxxxx 0000 X. Xxxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Corporate Trust & Loan Attention: Secondary Marketing --
Agency/Luminent 2007-2 Transaction Management
Maia Mortgage Finance Statutory Trust National City Mortgage Co.
000 Xxxxxxxxxx Xx., 00xx Xxxxx 0000 Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx Fargo Bank, N.A. Washington Mutual Bank
0000 Xxx Xxxxxxxxx Xxxx 0000 Xxxxxx Xxxxxx, XXX 3501
Columbia, MD 21045 Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Residential Funding Company, LLC Xxxxx Fargo Bank, N.A.
0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, 1 Home Campus
Suite 250 Des Moines, IA 50328-0001
Xxxxxxxxxxx, XX 00000 Attention: Xxxx X. Xxxxx, MAC X2401-042
Attention: Legal Department
Re: Custodial Agreement dated as of April 1, 2007 (the "Custodial
Agreement"), between HSBC Bank USA, National Association, as Trustee,
and Xxxxx Fargo Bank, N.A., as Custodian, with respect to Luminent
Mortgage Trust 2007-2 Mortgage Pass-Through Certificates. Series
2007-2
Ladies and Gentlemen:
In accordance with Section 3 of the Custodial Agreement, the undersigned,
as Custodian, hereby certifies that as to each Mortgage Loan listed on the
Mortgage Loan Schedule attached as Exhibit A thereto (other than any Mortgage
Loan paid in full or listed on Schedule I hereto), it has received the
applicable documents listed in Sections 2.01 and 2.02 of the Pooling Agreement.
Exhibit B-3-1
The undersigned hereby certifies that as to each Mortgage Loan listed on
each Mortgage Loan Schedule attached as Exhibit A thereto (other than any
Mortgage Loan paid in full or listed on Schedule I hereto), it has reviewed the
documents listed in Sections 2.01 and 2.02 of the Pooling Agreement and has
determined that each such document appears to be complete and, based on an
examination of such documents, the information set forth in items (i) through
(vi) of the definition of Mortgage Loan Schedule is correct.
Capitalized words and phrases used but not otherwise defined herein shall
have the respective meanings assigned to them in the Custodial Agreement. This
Certification is qualified in all respects by the terms of the Custodial
Agreement.
XXXXX FARGO BANK, N.A.,
as Custodian
By: ___________________________
Name:
Title:
Exhibit X-0-0
XXXXXXX X-0
REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
--------------------
Date
Xxxxx Fargo Bank, N.A.
00 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Account Manager
In connection with the administration of the mortgages held by you as
Custodian under a certain Custodial Agreement dated as of April 1, 2007 (the
"Custodial Agreement"), between HSBC Bank USA, National Association, as Trustee,
and you, as Custodian, the undersigned Master Servicer or Servicer hereby
requests a release of the Custodial File held by you as Custodian with respect
to the following described Mortgage Loan for the reason indicated below.
Mortgagor's Name:
Address:
Loan No.:
Reason for requesting file:
1. Mortgage Loan paid in full. The Master Servicer (or Servicer) hereby
certifies that all amounts received in connection with the loan have been or
will be credited to the Collection Account or the Distribution Account
(whichever is applicable) pursuant to the Pooling Agreement.
2. Mortgage Loan being foreclosed.
3. Mortgage Loan substituted. The Master Servicer (or Servicer) hereby
certifies that a Qualifying Substitute Mortgage Loan has been assigned and
delivered to you along with the related Custodial File pursuant to the Pooling
Agreement.
4. Mortgage Loan repurchased. The Master Servicer (or Servicer) hereby
certifies that the Purchase Price has been credited to the Collection Account or
the Distribution Account (whichever is applicable) pursuant to the Pooling
Agreement.
5. Other. (Describe)
The undersigned acknowledges that the above Custodial File will be held by
the undersigned in accordance with the provisions of the Pooling Agreement and
will be returned to you within ten days of our receipt of the Custodial File,
except if the Mortgage Loan has been paid in full, or repurchased or substituted
for a Qualifying Substitute Mortgage Loan (in which case the Custodial File will
be retained by us permanently).
Exhibit B-4-1
Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to them in the Custodial Agreement.
Name of Master Servicer (or Servicer)
By: _________________________________
Name:
Title: Servicing Officer
Exhibit B-4-2
EXHIBIT B-5
FORM OF LOST NOTE AFFIDAVIT AND AGREEMENT
I _________________________, being duly sworn, do hereby state under oath
that:
1. I am a duly elected ______________________ of Maia Mortgage Finance
Statutory Trust, Inc. (the "Company") and am duly authorized to make this
affidavit.
2. This affidavit is being delivered in connection with the transfer of the
Mortgage Loan described in Paragraph 3 hereof by the Company pursuant to the
Pooling Agreement dated as of April 1, 2007, among the Company as seller, HSBC
Bank USA, National Association as trustee, Xxxxx Asset Securitization, Inc., as
depositor, and Xxxxx Fargo Bank, N.A., as master servicer and securities
administrator, relating to the Luminent Mortgage Trust 2007-2 Mortgage
Pass-Through Certificates, Series 2007-2 (the "Pooling Agreement").
3. The [ ] is the payee under the following described Mortgage Note
("Mortgage Note") which evidences the obligation of the borrower(s) to repay the
Mortgage Loan:
Loan Number: ________________________________________
Mortgage Note Date: _________________________________
Borrower(s): ________________________________________
Original Payee (if not the Company): ________________
Original Amount: ____________________________________
Mortgage Rate: ______________________________________
Address of Mortgaged Property: ______________________
_____________________________________________________
4. The Company is the lawful owner of the Mortgage Note and has not
cancelled, altered, assigned or hypothecated the Mortgage Note.
5. A thorough and diligent search for the executed original Mortgage Note
was undertaken and was unsuccessful.
6. Attached hereto is a true and correct copy of the Mortgage Note.
7. The Mortgage Note has not been endorsed by the Company in any manner
inconsistent with its transfer of the Mortgage Loan under the Pooling Agreement
or any Reconstituted Servicing Agreement.
8. Without limiting the generality of the rights and remedies of the
Trustee contained in the Pooling Agreement, the Company hereby confirms and
agrees that in the event the inability to produce the executed original Mortgage
Note results in a breach of the representations, warranties and covenants
appearing in Section 3.01 of the Pooling Agreement, the Company shall repurchase
the Mortgage Loan at the Repurchase Price and otherwise in accordance with
Section 2.07 of the Pooling Agreement. In addition, the Company covenants and
agrees to indemnify the Trustee and the Trust Fund from and hold them harmless
Exhibit B-5-1
against any and all losses, liabilities, damages, claims or expenses (other than
those resulting from negligence or bad faith of the Trustee) arising from the
Company's failure to have delivered the Mortgage Note to the Trustee, including
without limitation any such losses, liabilities, damages, claims or expenses
arising from any action to enforce the indebtedness evidenced by the Mortgage
Note or any claim by any third party who is the holder of such indebtedness by
virtue of possession of the Mortgage Note.
9. In the event that the Company locates the executed original Mortgage
Note, it shall promptly provide the Mortgage Note to the Trustee.
10. Capitalized terms used but not otherwise defined herein shall have the
meanings given them in the Pooling Agreement.
Date: _________________________
________________________
(signature)
________________________
(print name)
________________________
(print title)
Exhibit B-5-2
EXHIBIT B-6
FORM OF ENDORSEMENT
Pay to the order of HSBC Bank USA, National Association, as trustee (the
"Trustee") under the Pooling Agreement dated as of April 1, 2007, among Maia
Mortgage Finance Statutory Trust as seller, HSBC Bank USA, National Association
as Trustee, Xxxxx Asset Securitization, Inc., as depositor, and Xxxxx Fargo
Bank, N.A., as master servicer and securities administrator, relating to
Luminent Mortgage Trust 2007-2 Mortgage Pass-Through Certificates, Series
2007-2, without recourse.
_____________________________________
[current signatory on note]
By: _________________________
Name:
Title:
Exhibit B-6-1
EXHIBIT C
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
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Name Signature Title
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Xxxxxxx Xxxx /s/ Xxxxxxx Xxxx Trust Officer
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Xxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxx Assistant Vice President
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Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxx Assistant Vice President
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Xxxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxxxx Vice President
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Exhibit C-1
EXHIBIT D
AUTHORIZED REPRESENTATIVES OF THE TRUSTEE
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Name Signature Title
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Exhibit D-1
EXHIBIT E
AUTHORIZED REPRESENTATIVES OF THE MASTER SERVICER
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Name Signature Title
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Exhibit E-1
EXHIBIT F-1
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(RESIDENTIAL FUNDING COMPANY, LLC)
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Name Signature Title
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Exhibit F-1-1
EXHIBIT F-2
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(INDYMAC BANK, F.S.B.)
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Name Signature Title
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Exhibit F-2-1
EXHIBIT F-3
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(NATIONAL CITY MORTGAGE CO.)
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Name Signature Title
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Exhibit F-3-1
EXHIBIT F-4
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(WASHINGTON MUTUAL BANK, FA)
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Name Signature Title
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Exhibit F-4-1
EXHIBIT F-5
AUTHORIZED REPRESENTATIVES OF THE SERVICER
(XXXXX FARGO BANK, N.A.)
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Name Signature Title
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Exhibit F-5-1
EXHIBIT G
SERVICING CRITERIA TO BE ADDRESSED IN REPORT ON ASSESSMENT OF COMPLIANCE
The Custodian shall address, at a minimum, the criteria identified as below
as "Applicable Servicing Criteria", as identified by a xxxx in the column titled
"Applicable Servicing Criteria";
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or other
triggers and events of default in accordance with the transaction agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, policies and
procedures are instituted to monitor the third party's performance and
compliance with such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party
participating in the servicing function throughout the reporting period in the
amount of coverage required by and otherwise in accordance with the terms of
the transaction agreements.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business days
following receipt, or such other number of days specified in the transaction
agreements.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an investor
are made only by authorized personnel.
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such advances, are
made, reviewed and approved as specified in the transaction agreements.
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Exhibit G-1
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth in the
transaction agreements.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes of this
criterion, "federally insured depository institution" with respect to a foreign
financial institution means a foreign financial institution
that meets the requirements of Rule 13k-1 (b)(1) of the Securities Exchange
Act.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed securities
related bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate; (B)
prepared within 30 calendar days after the bank statement cutoff date, or such
other number of days specified in the transaction
agreements; (C) reviewed and approved by someone other than the person
who prepared the reconciliation; and (D) contain explanations for reconciling
items. These reconciling items are resolved within 90 calendar days of their
original identification, or such other number of
days specified in the transaction agreements.
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Investor Remittances and Reporting
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1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared in
accordance with timeframes and other terms
set forth in the transaction agreements; (B) provide information calculated in
accordance with the terms specified in the transaction agreements; (C) are
filed with the Commission as required by its rules and regulations; and (D)
agree with investors' or the trustee's records as
to the total unpaid principal balance and number of mortgage loans serviced
by the Servicer.
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with
timeframes, distribution priority and other terms set forth in the transaction
agreements.
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1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to the
Servicer's investor records, or such other number of days specified in the
transaction agreements.
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Exhibit G-2
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the
transaction agreements or related mortgage loan documents. X
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1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the
transaction agreements X
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, reviewed
and approved in accordance with any conditions or requirements in the
transaction agreements.
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1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance with
the related mortgage loan documents are posted to the Servicer's obligor
records maintained no more than two business days after receipt, or such other
number of days specified in the transaction agreements, and allocated to
principal, interest or other items (e.g., escrow) in accordance with the related
mortgage loan documents.
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the Servicer's
records with respect to an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage loans
(e.g., loan modifications or re-agings) are made, reviewed and approved by
authorized personnel in accordance with the transaction agreements and
related pool asset documents.
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, modifications and
deeds in lieu of foreclosure, foreclosures and repossessions, as applicable) are
initiated, conducted and
concluded in accordance with the timeframes or other requirements
established by the transaction agreements.
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Exhibit G-3
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a
mortgage loan is delinquent in accordance with the transaction agreements.
Such records are maintained on at least a monthly basis, or such other period
specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent mortgage loans
including, for example, phone calls, letters and payment rescheduling plans in
cases where delinquency is deemed temporary (e.g., illness or
unemployment).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage loans with
variable rates are computed based on the related mortgage loan documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow accounts):
(A) such funds are analyzed, in accordance with the obligor's mortgage loan
documents, on at least an annual basis, or such other period specified in the
transaction agreements; (B) interest on
such funds is paid, or credited, to obligors in accordance with applicable
mortgage loan documents and state laws; and (C) such funds are returned to
the obligor within 30 calendar days of full repayment of the related mortgage
loans, or such other number of days specified
in the transaction agreements.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments)
are made on or before the related penalty or expiration dates, as indicated on
the appropriate bills or notices for such payments, provided that such support
has been received by the servicer at least 30
calendar days prior to these dates, or such other number of days specified in
the transaction agreements.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on
behalf of an obligor are paid from the servicer's funds and not charged to the
obligor, unless the late payment was due to the obligor's error or omission.
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business
days to the obligor's records maintained by the servicer, or such other number
of days specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are recognized and
recorded in accordance with the transaction agreements.
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Exhibit G-4
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Applicable
Servicing
Servicing Criteria Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(4)(xv) Any external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth in the
transaction agreements.
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Exhibit G-5
