LASALLE BANK NATIONAL ASSOCIATION as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2007-CB5 and LITTON LOAN SERVICING LP, as Servicer and THE BANK OF NEW YORK, as Custodian CUSTODIAL AGREEMENT dated as of May 1, 2007
LASALLE
BANK
NATIONAL ASSOCIATION
as
Trustee for the
C-BASS
Mortgage Loan Asset-Backed Certificates, Series 2007-CB5
and
▇▇▇▇▇▇
LOAN SERVICING LP,
as
Servicer
and
THE
BANK
OF NEW YORK,
as
Custodian
dated
as
of May 1, 2007
TABLE
OF
CONTENTS
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Page
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Section
1. Definitions
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1
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Section
2. Delivery of Custodial Files
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4
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Section
3. Custodian as Bailee
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5
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Section
4. Acknowledgement of Receipt; Trust Receipts
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6
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Section
5. Obligations of the Custodian
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6
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Section
6. Initial and Final Certifications
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6
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Section
7. Representations and Warranties of the Custodian
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7
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Section
8. Future Defects
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8
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Section
9. Release for Servicing
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8
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Section
10. RESERVED
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8
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Section
11. Release for Payment
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8
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Section
12. Fees of Custodian
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9
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Section
13. Removal of Custodian
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9
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Section
14. Transfer of Custodial Files Upon Termination
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9
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Section
15. Examination of Custodial Files
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9
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Section
16. Insurance of Custodian
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10
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Section
17. Counterparts
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10
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Section
18. Periodic Statements
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10
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Section
19. GOVERNING LAW
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10
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Section
20. Copies of Mortgage Documents
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10
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Section
21. No Adverse Interest of Custodian
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10
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Section
22. Termination by Custodian
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11
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Section
23. Term of Agreement
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11
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Section
24. Notices
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11
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Section
25. Successors and Assigns
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11
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Section
26. Concerning the Custodian
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11
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Section
27. Reliance of Custodian
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12
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Section
28. Transmission of Custodial Files
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12
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Section
29. Authorized Representatives
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13
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i
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Section
30. Reproduction of Documents
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13
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Section
31. Limitations on the Responsibilities of the Custodian
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13
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Section
32. WAIVER OF JURY TRIAL
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15
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Section
33. Regulation AB
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15
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Section
34. Third-Party Beneficiary
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17
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EXHIBITS
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EXHIBIT
1
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FORM
OF ACKNOWLEDGEMENT OF RECEIPT
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EXHIBIT
2A
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FORM
OF TRUST RECEIPT AND INITIAL CERTIFICATION
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EXHIBIT
2B
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FORM
OF TRUST RECEIPT AND FINAL CERTIFICATION
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EXHIBIT
3
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FORM
OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
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EXHIBIT
4
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AUTHORIZED
REPRESENTATIVES OF SERVICER
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EXHIBIT
5
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AUTHORIZED
REPRESENTATIVES OF TRUSTEE
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EXHIBIT
6
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MORTGAGE
LOAN SCHEDULE
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EXHIBIT
7
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FORM
OF ANNUAL CERTIFICATION
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ii
THIS
CUSTODIAL AGREEMENT (the “Custodial
Agreement”),
dated
as of May 1, 2007, by and among LaSalle Bank National Association, a national
banking association having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Securities and Trust Services—C-BASS
2007-CB5, not individually, but solely as trustee for C-BASS Mortgage Loan
Asset-Backed Certificates, Series 2007-CB5 (the “Trustee”),
▇▇▇▇▇▇ Loan Servicing LP, a Delaware limited partnership having an address
at
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, as servicer (the “Servicer”),
and
The Bank of New York, a New York banking corporation having an address at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as custodian (the “Custodian”).
WITNESSETH:
WHEREAS,
Asset Backed Funding Corporation (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 May 1, 2007 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.
Agreement:
This
Custodial Agreement and all amendments, attachments and supplements
hereto.
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.
1
Business
Day:
Any day
other than a Saturday, Sunday or a day on which banking institutions in the
State of New York, the State of Illinois and the State of Texas are authorized
or obligated by law or executive order to be closed.
Closing
Date:
May 31,
2007.
Commission.
The
United States Securities and Exchange Commission.
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.
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.
Cut-off
Date:
May 1,
2007.
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.
▇▇▇▇▇▇
▇▇▇:
Formerly known as the Federal National Mortgage Association, or any successor
organization.
Freddie
Mac:
The
Federal Home Loan Mortgage Corporation, or any successor
organization.
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.
2
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.
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.
Regulation
AB:
Subpart
229.1100 - Asset Backed Securities (Regulation AB), 17 C.F.R.
§§229.1100-229.1123, as such may be amended from time to time, and subject to
such clarification and interpretation as have been provided by the Commission
in
the adopting release (Asset-Backed Securities, Securities Act Release No.
33-8518, 70 Fed. Reg. 1,506 (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:
▇▇▇▇▇▇
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.
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 Custodian or a
Subservicer.
Subcustodian:
The
Bank of New York Trust Company, N.A. having an address at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Subservicer:
Any
Person that services Mortgage Loans on behalf of the Custodian 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 Custodian under this
Agreement or any Reconstitution Agreement that are identified in Item 1122(d)
of
Regulation AB.
3
Trust
Receipt:
Either
an Acknowledgment of Receipt, Trust Receipt and Initial Certification or a
Trust
Receipt and Final Certification.
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
form
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:
LaSalle
Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2007-CB5, 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 LaSalle Bank National
Association as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates,
Series 2007-CB5, 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 “LaSalle Bank
National Association, as Trustee for the C-BASS
Mortgage Loan Asset-Backed Certificates, Series 2007-CB5,
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
4
(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 endorsements in the following form: “Pay to the order of LaSalle
Bank National Association, as Trustee for the C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2007-CB5, 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 be provided 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.
5
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 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 are 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 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.
6
(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 ▇▇▇▇▇▇ ▇▇▇/Freddie 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.
7
(d) The
Custodian shall perform its obligations under this Custodial Agreement in
accordance with the standards incorporated by ▇▇▇▇▇▇ ▇▇▇ or Freddie 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.
8
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 The Bank of New York Trust Company, N.A., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other location as the Custodian may designate
in writing to the Trustee and the Servicer.
9
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 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 ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ ▇▇▇ Servicing
Guide or by Freddie Mac in the Freddie 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.
10
Section
22. Termination
by ▇▇▇▇▇▇▇▇▇.
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 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
LaSalle Bank National Association, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Global Securities and Trust Services -C-BASS
2007-CB5, in the case of the Servicer, to ▇▇▇▇▇▇ Loan Servicing LP, ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and in the case
of the Custodian, The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, 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.
11
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.
Notwithstanding
anything to the contrary herein or in the Pooling and Servicing Agreement,
it is
hereby understood that the Trustee shall not be liable for the acts, omissions,
duties, obligations or liabilities 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.
12
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 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.
13
(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 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.
14
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 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.
Not
later
than March 15 of each calendar year, commencing in 2008, 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) 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 ▇▇▇▇▇▇▇▇-▇▇▇▇▇ 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.
15
Subsection
33.02. Additional
Information to Be Provided by the Custodian.
For
so
long as the Certificates are outstanding, for the purpose of satisfying the
Depositor’s reporting obligation under the Exchange Act with respect to any
class of Certificates, the Custodian shall (a) notify the Depositor in writing
of any material litigation or governmental proceedings pending against the
Custodian that would be material to Certificateholders, and (b) provide to
the
Servicer a written description of such proceedings. Any notices and descriptions
required under this Subsection 33.02 shall be given no later than five (5)
Business Days prior to the Determination Date following the month in which
the
Custodian has knowledge of the occurrence of the relevant event. As of the
date
the Depositor or Servicer files each Report on Form 10-D or Form 10-K, as
applicable, with respect to the Certificates, the Custodian will be deemed
to
represent that any information previously provided under this Subsection 33.02,
if any, is materially correct and does not have any material omissions unless
the Custodian has provided an update to such information.
Subsection
33.03. 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 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 2007-CB5
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 2007-CB5 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.
16
Section
34. Third-Party
Beneficiary
The
parties hereto agree that the Depositor shall be a third-party beneficiary
to
this Agreement.
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.
| LASALLE BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee for the C-BASS Mortgage Loan Asset-Backed Certificates, Series 2007-CB5 | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ |
||
| Title: Vice President | ||
| ▇▇▇▇▇▇ LOAN SERVICING LP, as Servicer | ||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
| Title: Senior Vice President | ||
| THE BANK OF NEW YORK, as Custodian | ||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ | |
|
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ |
||
|
Title: Assistant
Vice President
|
||
18