MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS LLC, Purchaser MORGAN STANLEY CREDIT CORPORATION, Servicer and Seller LASALLE BANK NATIONAL ASSOCIATION, Trustee WELLS FARGO BANK, NATIONAL ASSOCIATION, Master Servicer and Securities Administrator and WELLS...
EXECUTION
VERSION
▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL HOLDINGS LLC,
Purchaser
▇▇▇▇▇▇
▇▇▇▇▇▇▇ CREDIT CORPORATION,
Servicer
and Seller
LASALLE
BANK NATIONAL ASSOCIATION,
Trustee
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
and
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION,
Custodian
|
As
of October 1, 2007
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-14AR
EXECUTION
VERSION
TABLE OF
CONTENTS
Page
|
Section
1.
Definitions.
|
2
|
|
Section
2.
Delivery of Custodial Files.
|
7
|
|
Section 3.
[Reserved].
|
10
|
|
Section
4.
Obligations of the Custodian.
|
10
|
|
Section
5.
Certification.
|
11
|
|
Section
6. Future
Defects.
|
11
|
|
Section
7.
Release for Servicing.
|
11
|
|
Section
8.
Limitation on Release.
|
12
|
|
Section
9.
Release for Payment.
|
12
|
|
Section
10. Fees
of Custodian.
|
12
|
|
Section
11.
Removal of Custodian.
|
12
|
|
Section
12.
Transfer of Custodial Files Upon Termination.
|
13
|
|
Section
13.
Examination of Custodial Files.
|
13
|
|
Section
14.
Insurance of Custodian.
|
13
|
|
Section
15.
Counterparts.
|
14
|
|
Section
16.
Periodic Statements.
|
14
|
|
Section
17.
Governing Law.
|
14
|
|
Section
18. Copies of Mortgage
Documents
|
14
|
|
Section
19.
Adverse Interest of Custodian.
|
14
|
|
Section 20.
Termination by
Custodian.
|
14
|
|
Section
21.
Entire Agreement; Severability.
|
15
|
|
Section
22. Term
of Agreement.
|
15
|
i
|
Section
23.
Notices.
|
15
|
|
Section
24.
Successors and Assigns.
|
15
|
|
Section
25.
Indemnification of the Purchaser.
|
15
|
|
Section
26.
Indemnification of Custodian.
|
16
|
|
Section
27.
Reliance of Custodian.
|
16
|
|
Section
28.
Transmission of Custodial Files.
|
17
|
|
Section
29.
Authorized Representatives.
|
18
|
|
Section
30.
Reproduction of Documents.
|
18
|
|
Section
31.
Waiver of Trial by Jury.
|
18
|
|
Section
32.
Submission To Jurisdiction; Waivers.
|
18
|
|
Section
33.
Compliance with Regulation AB.
|
18
|
ii
EXHIBITS
|
EXHIBIT
1
|
REVIEW
PROCEDURES
|
|
EXHIBIT
2-A
|
FORM
OF INITIAL CUSTODIAN CERTIFICATION
|
|
EXHIBIT
2-B
|
FORM
OF FINAL CUSTODIAN CERTIFICATION
|
|
EXHIBIT
3
|
FORM
OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
|
|
EXHIBIT
4
|
FORM
OF OPINION OF COUNSEL TO THE CUSTODIAN
|
|
EXHIBIT
5
|
AUTHORIZED
REPRESENTATIVES OF THE CUSTODIAN
|
|
EXHIBIT
6
|
AUTHORIZED
REPRESENTATIVES OF THE SERVICER
|
|
EXHIBIT
7
|
FORM
OF LOST NOTE AFFIDAVIT
|
|
EXHIBIT
8
|
MORTGAGE
LOAN SCHEDULE
|
|
EXHIBIT
9
|
SERVICING
CRITERIA
|
iii
EXECUTION
VERSION
THIS
CUSTODIAL AGREEMENT, dated as of October 1, 2007 (“Agreement”), by and
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC, having an address at 1221
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, successor by
merger to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. (the “Purchaser”), ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Credit Corporation (formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit
Corporation), having an address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ (“MSCC”,
a “Servicer”
and a “Seller”), LaSalle
Bank National Association having an address at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Trustee”), ▇▇▇▇▇
Fargo Bank, National Association, having an address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the “Master Servicer” and
the “Securities
Administrator”) and ▇▇▇▇▇ Fargo Bank, National Association, a national
banking association chartered under the laws of the United States of America,
having an address at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Custodian”);
W I T N E S S E T
H:
WHEREAS,
the Purchaser has purchased from the Seller and the Seller has sold to the
Purchaser, certain mortgage loans specified on Exhibit 1 hereto (the “Mortgage Loans”),
pursuant to the terms and conditions of (i) a Third Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005 between MSCC and
the Purchaser (the “Purchase Agreement”)
and (ii) an Amended and Restated Master Servicing Agreement, dated as of
February 1, 2004 between MSCC and the Purchaser (the “Servicing Agreement”,
and, together with the Purchase Agreement, the “Sale and Servicing
Agreements”);
WHEREAS,
the Mortgage Loans purchased pursuant to the Purchase Agreement will be serviced
by the Servicer pursuant to the Servicing Agreement;
WHEREAS,
the Mortgage Loans purchased pursuant to the Sale and Servicing Agreements are
being held by the Custodian as custodian for the Purchaser pursuant to the
custody agreement referenced in the Sale and Servicing Agreements (the “Underlying Custody
Agreement”);
WHEREAS,
the Mortgage Loans have been transferred to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. (the
“Depositor”)
pursuant to an Assignment, Assumption and Recognition Agreement, dated as of
October 1, 2007, among the Seller, the Servicer, the Depositor, the Purchaser,
the Master Servicer and the Trustee;
WHEREAS,
the Mortgage Loans have been transferred to the Trustee on behalf of the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-14AR (the “Trust”) pursuant to
the Pooling and Servicing Agreement dated as of October 1, 2007 (the “PSA”), among the
Depositor, the Master Servicer, the Securities Administrator and the
Trustee;
WHEREAS,
the Mortgage Loans will be master serviced by the Master Servicer pursuant to
the PSA and serviced by the Servicer pursuant to the Servicing
Agreement;
WHEREAS,
the Trust desires to have the Custodian take possession of the mortgage and
mortgage notes (collectively, the “Mortgage Notes”) for
the Mortgage Loans,
along
with certain other documents specified herein, as the Custodian of the Trust or
subsequent purchasers of the Mortgage Loans, in accordance with the terms and
conditions hereof; and
NOW,
THEREFORE, in consideration of the mutual undertakings herein expressed, the
parties hereto hereby agree as follows:
Section
1. Definitions.
For
purposes of this Agreement the following capitalized terms shall have the
respective meanings set forth below.
Adjustable Rate Mortgage
Loan: An adjustable rate Mortgage Loan purchased pursuant to a
Purchase Agreement.
Affiliate: With
respect to any specified Person, any other Person controlling or controlled by
or under common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise and the terms “controlling” and “controlled” have meanings correlative
to the foregoing.
Agreement: This
Custodial Agreement and all amendments and attachments hereto and supplements
hereof.
Appraised
Value: The value set forth in an appraisal made in connection
with the origination of the related Mortgage Loan as the value of the Mortgaged
Property.
Assignment of
Mortgage: An assignment of the Mortgage, notice of transfer or
equivalent instrument in recordable form (except for the omission of the name of
the assignee), sufficient under the laws of the jurisdiction wherein the related
Mortgaged Property is located to reflect the sale of the Mortgage to the
Purchaser.
Balloon Mortgage
Loan: Any Mortgage Loan which by its original terms or any
modifications thereof provides for amortization beyond its scheduled maturity
date.
Business
Day: Any day other than (i) a Saturday or Sunday, (ii) a day
on which banking and savings and loan institutions in the State of New York, or
the state in which the Servicer’s servicing operations are located or (iii) the
state in which the Custodian’s operations are located, are authorized or
obligated by law or executive order to be closed.
Certification: A
final certification as to each Mortgage Loan, which Certification is delivered
to the Purchaser by the Custodian in the form annexed hereto as Exhibit
2.
Closing
Date: October 31, 2007.
CLTV: As
of any date and as to any Second Lien Loan, the ratio, expressed as a
percentage, of the (a) sum of (i) the outstanding principal balance of the
Second Lien Loan and (ii) the outstanding principal balance as of such date of
any mortgage loan or mortgage loans that
2
are
senior or equal in priority to the Second Lien Loan and which are secured by the
same Mortgaged Property to (b) the appraised value of the Mortgaged
Property.
Co-op: A
private, cooperative housing corporation, having only one class of stock
outstanding, which owns or leases land and all or part of a building or
buildings, including apartments, spaces used for commercial purposes and common
areas therein and whose board of directors authorizes the sale of stock and the
issuance of a Co-op Lease.
Co-op
Lease: With respect to a Co-op Loan, the lease with respect to
a dwelling unit occupied by the Mortgagor and relating to the stock allocated to
the related dwelling unit.
Co-op
Loan: A Mortgage Loan secured by the pledge of stock allocated
to a dwelling unit in a residential cooperative housing corporation and a
collateral assignment of the related Co-op Lease.
Custodian: ▇▇▇▇▇
Fargo Bank, National Association, or its successor in interest or permitted
assigns, or any successor to the Custodian under this Agreement as herein
provided.
Custodial
File: As to each Mortgage Loan, any mortgage loan documents
which are delivered to the Custodian or which at any time come into the
possession of the Custodian.
Cut-off
Date: October 1, 2007.
Due
Date: The day of the month on which the Monthly Payment is due
on a Mortgage Loan, exclusive of any days of grace.
▇▇▇▇▇▇
▇▇▇: The Federal National Mortgage Association, or any
successor thereto.
First Lien
Loan: Any Mortgage Loan secured by a first lien on the related
Mortgaged Property.
Fixed Rate Mortgage
Loan: A fixed rate mortgage loan purchased pursuant to a
Purchase Agreement.
▇▇▇▇▇▇▇
Mac: The Federal Home Loan Mortgage Corporation, or any
successor thereto.
Gross
Margin: With respect to each Adjustable Rate Mortgage Loan,
the fixed percentage amount set forth in the related Mortgage Note which amount
is added to the Index in accordance with the terms of the related Mortgage Note
to determine on each Interest Rate Adjustment Date the Mortgage Interest Rate
for such Mortgage Loan.
High Cost
Loan: A Mortgage Loan classified as (a) a “high cost” loan
under the Home Ownership and Equity Protection Act of 1994, (b) a “high cost
home,” “threshold,” “covered,” “high risk home,” or “predatory” loan under any
other applicable federal, state or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory scrutiny
or additional legal liability for residential mortgage loans having
3
high
interest rates, points and/or fees) or (c) a Mortgage Loan categorized as High
Cost pursuant to Appendix E of Standard & Poor’s Glossary. For avoidance of
doubt, the parties agree that this definition shall apply to any law regardless
of whether such law is presently, or in the future becomes, the subject of
judicial review or litigation.
Home
Loan: A Mortgage Loan categorized as Home Loan pursuant to
Appendix E of Standard & Poor’s Glossary.
Index: The
index indicated in the related Mortgage Note for each Adjustable Rate Mortgage
Loan.
Interest Rate Adjustment
Date: With respect to each Adjustable Rate Mortgage Loan, the
date, specified in the related Mortgage Note and the Mortgage Loan Schedule, on
which the Mortgage Interest Rate is adjusted.
Lifetime Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum Mortgage
Interest Rate thereunder. The Mortgage Interest Rate during the terms of each
Adjustable Rate Mortgage Loan shall not at any time exceed the Mortgage Interest
Rate at the time of origination of such Adjustable Rate Mortgage Loan by more
than the Lifetime Rate Cap set forth as an amount per annum on the Mortgage Loan
Schedule.
Loan-to-Value Ratio or
LTV: With respect to any Mortgage Loan, the ratio (expressed
as a percentage) of the outstanding principal amount of the Mortgage Loan as of
the Cut-off Date (unless otherwise indicated), to the lesser of (a) the
Appraised Value of the Mortgaged Property at origination and (b) if the Mortgage
Loan was made to finance the acquisition of the related Mortgaged Property, the
purchase price of the Mortgaged Property.
MERS: Mortgage
Electronic Registration Systems, Inc., a Delaware corporation, and its
successors in interest.
MERS Designated Mortgage
Loan: Any Mortgage Loans for which (a) the applicable Seller
has designated or will designate MERS as, and has taken or will take such action
as is necessary to cause MERS to be, the mortgagee of record, as nominee for
such Seller, in accordance with MERS Procedure Manual, (b) such Seller has
designated or will designate the Purchaser as the Investor on the MERS® System,
and (c) such Seller has designated or will designate the Custodian as the
Custodian on the MERS® System. The Purchaser or its designee will advise the
Custodian in writing of any MERS Designated Mortgage Loans being delivered on
any Delivery Date.
MERS Identification
Number: The eighteen digit number permanently assigned to each
MERS Designated Mortgage Loan.
MERS Procedures
Manual: The MERS Procedures Manual, as it may be amended,
supplemented or otherwise modified from time to time.
MERS
Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
4
MERS®
System: MERS electronic registry system, as more particularly
described in the MERS Procedure Manual.
Monthly
Payment: The scheduled monthly payment of principal and
interest on a Mortgage Loan.
Mortgage: With
respect to a Mortgage Loan that is not a Co-op Loan, the mortgage, deed of trust
or other instrument securing a Mortgage Note, which creates a first lien, in the
case of a First Lien Loan, or a second lien, in the case of a Second Lien Loan,
on an unsubordinated estate in fee simple in real property securing the Mortgage
Note; except that with respect to real property located in jurisdictions in
which the use of leasehold estates for residential properties is a
widely-accepted practice, the mortgage, deed of trust or other instrument
securing the Mortgage Note may secure and create a first lien in the case of a
First Lien Loan, and with respect to a Second Lien Loan, a second lien, in each
case, upon a leasehold estate of the Mortgagor. With respect to a Co-op Loan,
the Security Agreement.
Mortgage Interest
Rate: The annual rate of interest borne on a Mortgage Note
with respect to each Mortgage Loan in accordance with the provisions of the
Mortgage Note.
Mortgage Interest Rate
Cap: With respect to an Adjustable Rate Mortgage Loan, the
limit on each Mortgage Interest Rate adjustment as set forth in the related
Mortgage Note.
Mortgage Loan
Package: The pool of Mortgage Loans, which shall be purchased
by the Purchaser from the Seller on the Closing Date and designated as being
held by the Custodian.
Mortgage Loan
Schedule: The schedule of Mortgage Loans setting forth the
following information with respect to each Mortgage Loan in the Mortgage Loan
Package as of the close of business on the Cut-off Date: (1) the applicable
Seller’s Mortgage Loan identifying number; (2) the Mortgagor’s name; (3) the
street address of the Mortgaged Property including the city, state and zip code;
(4) a code indicating whether the Mortgagor is self-employed; (5) a code
indicating whether the Mortgaged Property is owner-occupied; (6) the number and
type of residential units constituting the Mortgaged Property; (7) the original
months to maturity or the remaining months to maturity from the Cut-off Date, in
any case based on the original amortization schedule and, if different, the
maturity expressed in the same manner but based on the actual amortization
schedule; (8) with respect to each First Lien Loan, the Loan-to-Value Ratio at
origination, and with respect to each Second Lien Loan, the CLTV at origination;
(9) the Mortgage Interest Rate as of the Cut-off Date; (10) the day of the month
on which the Monthly Payment is due on the Mortgage Loan and, if such date is
not consistent with the Due Date currently in effect, such Due Date; (11) the
stated maturity date; (12) the first payment date; (13) the amount of the
Monthly Payment as of the Cut-off Date; (14) the last payment date on which a
payment was actually applied to the outstanding principal balance; (15) the
original principal amount of the Mortgage Loan; (16) the principal balance of
the Mortgage Loan as of the close of business on the Cut-off Date, after
deduction of payments of principal due and collected on or before the Cut-off
Date; (17) delinquency status as of the Cut-off Date; (18) with respect to each
Adjustable Rate Mortgage Loan, the Interest Rate Adjustment Date; (19) with
respect to each Adjustable Rate Mortgage Loan, the Gross Margin; (20) with
respect to each Adjustable Rate
5
Mortgage
Loan, the Lifetime Rate Cap under the terms of the Mortgage Note; (21) with
respect to each Adjustable Rate Mortgage Loan, a code indicating the type of
Index; (22) the type of Mortgage Loan (i.e., Fixed or Adjustable Rate Mortgage
Loan, First or Second Lien Loan); (23) a code indicating the purpose of the loan
(i.e., purchase, rate and term refinance, equity take-out refinance); (24) a
code indicating the documentation style (i.e., full, alternative or reduced);
(25) asset verification (Y/N); (26) the loan credit classification (as described
in the Underwriting Guidelines); (27) whether such Mortgage Loan provides for a
Prepayment Penalty and, if applicable, the Prepayment Penalty period; (28) the
Mortgage Interest Rate as of origination; (29) the credit risk score (FICO
score); (30) the date of origination; (31) with respect to Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate adjustment period; (32) with respect
to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate adjustment
percentage; (33) with respect to each Adjustable Rate Mortgage Loan, the
Mortgage Interest Rate floor; (34) with respect to each Adjustable Rate Mortgage
Loan, the Mortgage Interest Rate Cap as of the first Interest Rate Adjustment
Date; (35) with respect to each Adjustable Rate Mortgage Loan, the Periodic Rate
Cap subsequent to the first Interest Rate Adjustment Date; (36) with respect to
each Adjustable Rate Mortgage Loan, a code indicating whether the Mortgage Loan
provides for negative amortization; (37) with respect to each Adjustable Rate
Mortgage Loan with negative amortization, the negative amortization limit; (38)
a code indicating whether the Mortgage Loan is a Home Loan; (39) a code
indicating whether the Mortgage Loan is a Balloon Mortgage Loan; (40) the Due
Date for the first Monthly Payment; (41) the original Monthly Payment due; (42)
a code indicating the PMI Policy provider and percentage of coverage, if
applicable; (43) Appraised Value; (44) appraisal type; (45) automated valuation
model (AVM); (46) appraisal date; (47) with respect to the related Mortgagor,
the debt-to-income ratio; and (48) the MERS Identification Number, if any. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule shall
set forth the following information, as of the Cut-off Date: (1) the number of
Mortgage Loans; (2) the current aggregate outstanding principal balance of the
Mortgage Loans; (3) the weighted average Mortgage Interest Rate of the Mortgage
Loans; (4) the weighted average maturity of the Mortgage Loans; (5) the Cut-off
Date; and (6) the applicable Closing Date. The Mortgage Loan Schedule in
connection with the Closing Date is attached hereto as Exhibit 8.
Mortgage
Note: The note or other evidence of the indebtedness of a
Mortgagor secured by a Mortgage.
Mortgaged
Property: With respect to a Mortgage Loan that is not a Co-op
Loan, the real property (or leasehold estate, if applicable) securing repayment
of the debt evidenced by a Mortgage Note. With respect to a Co-op Loan, the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Mortgagor: The
obligor on a Mortgage Note.
Periodic Rate
Cap: The provision of each Mortgage Note related to an
Adjustable Rate Mortgage Loan which provides for an absolute maximum amount by
which the Mortgage Interest Rate therein may increase or decrease on an Interest
Rate Adjustment Date above or below the Mortgage Interest Rate previously in
effect. The Periodic Rate Cap for each Adjustable Rate Mortgage Loan is the rate
set forth as such on the Mortgage Loan Schedule.
6
Person: Any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof.
PMI
Policy: A policy of primary mortgage guaranty insurance issued
by an insurer acceptable under the Seller’s underwriting guidelines and
qualified to do business in the jurisdiction where the Mortgaged Property is
located.
Prepayment
Charge: With respect to each Mortgage Loan, the penalty if the
Mortgagor prepays such Mortgage Loan as provided in the related Mortgage Note or
Mortgage.
Purchase
Agreement: With respect to any Mortgage Loan, the agreement
pursuant to which the Purchaser purchases such Mortgage Loan.
Purchaser: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC, successor by merger to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Inc., or its successor in interest or assigns, or any successor
to the Purchaser under a Sale and Servicing Agreement as therein
provided.
Second Lien
Loan: A Mortgage Loan secured by a second lien Mortgage on the
related Mortgaged Property.
Security
Agreement: The agreement creating a security interest in the
stock allocated to a dwelling unit in the residential cooperative housing
corporation that was pledged to secure such Co-op Loan and the related Co-op
Lease.
Seller: ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Credit Corporation (formerly known as ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Credit
Corporation), or its successor in interest or assigns, or any successor to the
Seller under the Sale and Servicing Agreements as therein provided.
Servicer: With
respect to any Mortgage Loan, the Person acting as servicer under the Servicing
Agreement.
Standard &
Poor’s: Standard & Poor’s Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard & Poor’s
Glossary: The Standard & Poor’s LEVELS® Glossary, as may
be in effect from time to time.
Section
2. Delivery of Custodial
Files.
The
Seller will deliver and release to the Custodian on or prior to October 31, 2007
(the “Closing
Date”) the following original documents pertaining to each of the
Mortgage Loans identified in the Mortgage Loan Schedule:
(a) the
original Mortgage Note bearing all intervening endorsements, endorsed “Pay to
the order of __________, without recourse” and signed in the name of the last
endorsee (the “Last
Endorsee”) by an authorized officer. Any endorsement may be contained on
an allonge (or in lieu of an original endorsement or allonge, a facsimile or a
portable document
7
format
(PDF) copy thereof). If the Mortgage Loan was acquired by the Seller in a
merger, the endorsement must be by “[Last Endorsee], successor by merger to
[name of predecessor]”. If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name, the endorsement must be
by “[Last Endorsee], formerly known as [previous name]”;
(b) the
original of any guarantee executed in connection with the Mortgage
Note;
(c) with
respect to Mortgage Loans that are not Co-op Loans, the original Mortgage with
evidence of recording thereon. With respect to any Co-op Loan, an original or
copy of the Security Agreement;
(d) the
originals of all assumption, modification, consolidation or extension
agreements, if any, with evidence of recording thereon;
(e) with
respect to Mortgage Loans that are not Co-op Loans, the original Assignment of
Mortgage for each Mortgage Loan (or, in lieu of an original signature page of
the Assignment of Mortgage, a facsimile or a Portable Document Format (PDF) copy
thereof), in form and substance acceptable for recording (except with respect to
MERS Designated Mortgage Loans). The Assignment of Mortgage shall be delivered
in blank. If the Mortgage Loan was acquired by the Seller in a merger, the
Assignment of Mortgage must be made by “[Seller], successor by merger to [name
of predecessor]”. If the Mortgage Loan was acquired or originated by the Seller
while doing business under another name, the Assignment of Mortgage must be by
“[Seller], formerly known as [previous name]”. With respect to any Co-op Loan,
an original or copy of the assignment of the Security Agreement endorsed in
blank, together with all intervening assignments thereof;
(f) with
respect to Mortgage Loans that are not Co-op Loans, the originals of all
intervening assignments of mortgage (if any) evidencing a complete chain of
assignment from the Seller to the Last Endorsee (or, in the case of a MERS
Designated Mortgage Loan, MERS) with evidence of recording thereon;
(g) with
respect to Mortgage Loans that are not Co-op Loans, the original mortgagee
policy of title insurance or, in the event such original title policy is
unavailable, a certified true copy of the related policy binder or commitment
for title certified to be true and complete by the title insurance
company;
(h) the
original or, if unavailable, a copy of any security agreement, chattel mortgage
or equivalent document executed in connection with the Mortgage;
and
(i) with
respect to any Co-op Loan: (i) a copy of the Co-op Lease and the assignment of
such Co-op Lease, with all intervening assignments showing a complete chain of
title and an assignment thereof by Seller; (ii) the stock certificate together
with an undated stock power relating to such stock certificate executed in
blank; (iii) the recognition agreement of the interests of the mortgagee with
respect to the Co-op Loan by the residential cooperative housing corporation,
the stock of which was pledged by the related Mortgagor to the originator of
such Co-op Loan; (iv) copies of the financing statement filed by the originator
as secured party and, if
8
applicable,
a filed UCC-3 Assignment of the subject security interest showing a complete
chain of title, together with an executed UCC-3 Assignment of such security
interest by the Seller; and
(j) if
any of the above documents has been executed by a person holding a power of
attorney, an original or photocopy of such power certified by the Seller to be a
true and correct copy of the original.
In the
event any document required to be delivered to the Custodian in the Custodial
Agreement, including an original or copy of any document submitted for
recordation to the appropriate public recording office, is not so delivered to
the Custodian, or to such other Person as the Purchaser shall designate in
writing, within 180 days following the Closing Date (other than with respect to
the Assignments of Mortgage which shall be delivered to the Custodian in blank
and recorded subsequently by the Purchaser or its designee), and in the event
that the Seller does not cure such failure within 30 days of discovery or
receipt of written notification of such failure from the Purchaser, the related
Mortgage Loan shall, upon the request of the Purchaser, be repurchased by the
Seller at the price and in the manner specified in Section 3
of the Purchase Agreement. The foregoing repurchase obligation shall not apply
in the event that the Seller cannot deliver an original document submitted for
recordation to the appropriate public recording office within the specified
period due to a delay caused by the recording office in the applicable
jurisdiction; provided that the Seller shall instead deliver a recording receipt
of such recording office or, if such recording receipt is not available, an
officer’s certificate of a servicing officer of the Seller, confirming that such
documents have been accepted for recording; provided that, upon request of the
Purchaser and delivery by the Purchaser to the Seller of a schedule of the
Mortgage Loans, the Seller shall reissue and deliver to the Purchaser or its
designee said officer’s certificate.
From time
to time, the Seller shall forward to the Custodian additional original
documents, additional documents evidencing an assumption, modification,
consolidation or extension of a Mortgage Loan approved by the Seller, in
accordance with the terms of the related Purchase Agreement. All such mortgage
documents held by the Custodian as to each Mortgage Loan shall constitute the
“Custodial
File”.
At the
request of the Purchaser, the Seller shall submit for recording at the sole
expense of the Seller, in the appropriate public office for real property
records, each assignment referred to in Sections 2(e) and (f) above; provided,
however, that the assignments referred to in Section 2(e) shall not be recorded
for Mortgages for which the Mortgaged Property is located in California (unless
required by the Purchaser). In the event that any such assignment is lost or
returned unrecorded because of a defect therein, the Seller shall promptly
prepare a substitute assignment to cure such defect and thereafter cause each
such assignment to be duly recorded.
On or
prior to the Closing Date the Seller shall deliver to the Custodian a copy of
the Mortgage Loan Schedule in an electronic, machine readable medium on a form
mutually acceptable to the Seller and the Custodian.
Notwithstanding
anything to the contrary contained in this Section 2, in those instances where
the public recording office retains or loses the original Mortgage or assignment
after it has been recorded, the obligations of the Seller shall be deemed to
have been satisfied
9
upon
delivery by the Seller to the Purchaser or its designee prior to the Closing
Date of a copy of such Mortgage or assignment, as the case may be, certified
(such certification to be an original thereof) by the public recording office to
be a true and complete copy of the recorded original thereof.
Section
3. [Reserved].
Section
4. Obligations of the
Custodian.
(a) The
Custodian shall maintain continuous custody of all items constituting the
Custodial Files in secure facilities in accordance with customary standards for
such custody and shall reflect in its records the interest of the Trustee, on
behalf of the Trust therein. Each Mortgage Note (and Assignment of Mortgage)
shall be maintained in fire resistant facilities.
(b) With
respect to the documents constituting the Custodial File relating to a Mortgage
Loan listed on the Mortgage Loan Schedule, the Custodian shall (i) act
exclusively as the bailee of, and Custodian for, the Trustee, on behalf of the
Trust, (ii) hold all documents constituting such Custodial File received by it
for the exclusive use and benefit of the Trustee, on behalf of the Trust, and
(iii) make disposition thereof only in accordance with the terms of this
Custodial Agreement.
(c) In
the event that (i) the Trustee, the Purchaser, the Seller, or the Custodian
shall be served by a third party with any type of levy, attachment, writ or
court order with respect to any Custodial File or any document included within a
Custodial File or (ii) a third party shall institute any court proceeding by
which any Custodial File or a document included within a Custodial File shall be
required to be delivered otherwise than in accordance with the provisions of
this Custodial Agreement, the party receiving such service shall promptly
deliver or cause to be delivered to the other parties to this Custodial
Agreement copies of all court papers, orders, documents and other materials
concerning such proceedings. The Custodian shall, to the extent permitted by
law, continue to hold and maintain all the Custodial Files that are the subject
of such proceedings pending a final, nonappealable order of a court of competent
jurisdiction permitting or directing disposition thereof. Upon final
determination of such court, the Custodian shall dispose of such Custodial File
or any document included within such Custodial File as directed by the Purchaser
which shall give a direction consistent with such determination. Expenses and
fees (including attorney’s fees) of the Custodian incurred as a result of such
proceedings shall be borne by the Trust.
(d) The
Trustee, on behalf of the Trust, hereby acknowledges that the Custodian shall
not be responsible for the validity and perfection of the Trust’s security
interest in the Mortgage Loans hereunder, other than the Custodian’s obligation
to take possession of the Custodial Files as set forth in Section 2
hereof
(e) The
Custodian shall have no duties or responsibilities except those that are
specifically set forth herein, or as subsequently agreed in writing by the
parties hereto, and no implied covenants or obligations shall be read into this
Agreement against the Custodian.
(f) The
Custodian shall have no responsibility nor duty with respect to any Custodial
Files while not in its possession.
10
(g) The
Custodian shall be under no obligation to make any investigation into the facts
or matters stated in any resolution, exhibit, request, representation, opinion,
certificate, statement, acknowledgement, consent, order or document in the
Custodial File.
(h) The
Custodian shall not be liable with respect to any action taken or omitted to be
taken in accordance with the written direction, instruction, acknowledgement,
consent or any other communication from the Trustee or the Master
Servicer.
(i) The
provisions of this Section 4 shall survive the resignation or removal of the
Custodian and the termination of this Custodial Agreement.
(j) The
Custodian shall not be an agent of the Trustee and the Trustee shall have no
responsibility or liability on the actions or omissions of the
Custodian.
Section
5. Certification.
On or
prior to the Closing Date, and as a condition to such closing, the Custodian
shall deliver via facsimile (with original to follow the next Business Day) to
the Purchaser, the Master Servicer and the Trustee a Certification indicating
whether or not all documents required to be delivered to it are in its
possession. The Custodian shall deliver to the Purchaser, Master Servicer and
the Trustee a Certification (which may be delivered electronically by e-mail) to
the effect 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 are in its possession; (ii) such
documents have been reviewed by it and appear regular on their face and relate
to such Mortgage Loan; (iii) each Custodial File has been reviewed in accordance
with the review procedures set forth in Exhibit 1
hereto; and (iv) each Mortgage Note has been endorsed as provided in Section 2
of this Agreement. The Custodian shall not be responsible to verify the
validity, sufficiency or genuineness of any document in any Custodial File. Such
Certification shall include a list of any exceptions outstanding. Thereafter,
the Custodian shall update the Certification (which shall be delivered in EXCEL
format by e-mail) every thirty (30) days or upon request until all Custodial
Files are certified to be complete.
Section
6. Future
Defects.
During
the term of this Agreement, if the Custodian discovers any defect with respect
to the Custodial File, the Custodian shall give written specification of such
defect to the Purchaser. For purposes of this section, “defect” shall mean a
failure of a document to correspond to the information set forth in the Mortgage
Loan Schedule or the absence of a Mortgage File or any part thereof or any other
document required pursuant to this Agreement. The Seller shall be solely
responsible for completing or correcting any missing, incomplete or inconsistent
documents, and the Custodian shall not be responsible or liable for taking any
such action, causing the Seller or any other person or entity to do so or notify
any person that ay such action has or has not been taken.
Section
7. Release for
Servicing.
11
From time
to time and as appropriate for the foreclosure or servicing of any of the
Mortgage Loans, the Custodian shall, upon receipt in writing or facsimile or
electronic form from the Trustee or the Master Servicer of a request for release
of documents and receipt in the form annexed hereto as Exhibit 3 (each, a
“Request for
Release”), release to the Trustee or the Master Servicer, as applicable,
the Custodial File set forth in such Request for Release within two (2) Business
Days of receipt of such request. The Trustee or the Master Servicer, as
applicable, shall return to the Custodian the Custodial File when the Trustee’s
or the Master Servicer’s need therefor in connection with such foreclosure or
servicing no longer exists, unless the Mortgage Loan shall be liquidated. In
such a case, upon receipt by the Custodian of an additional Request for Release
certifying such liquidation from the Trustee or the Master Servicer, the Request
for Release submitted pursuant to the first sentence of this Section 7 shall be
deemed released by the Custodian to the Trustee or the Master
Servicer.
Section
8. Limitation on
Release.
The
foregoing provision respecting release to the Trustee or its designee (which may
be the Master Servicer) of the Custodial Files or documents by the Custodian
shall be operative only to the extent that the Custodian shall not have released
to the Trustee or its designee (which may be the Master Servicer) Custodial
Files or documents (including those requested) pertaining to more than fifteen
(15) Mortgage Loans at the time. Any additional Custodial Files or
documents requested to be released to the Trustee or its designee (which may be
the Master Servicer) may be released upon written authorization of the Trustee
or its designee (which may be the Master Servicer). The limitations of this
paragraph shall not apply to the release of Custodial Files under Section 9
below.
Section
9. Release for
Payment.
Upon the
repurchase of any Mortgage Loan pursuant to the Purchase Agreement, or upon the
payment in full of any Mortgage Loan, and upon receipt by the Custodian of the
Trustee’s or the Master Servicer’s written Request for Release in written or
facsimile or electronic form (which certification shall include a statement to
the effect that all amounts payable to the Securities Administrator in
connection with a repurchase have been remitted to the Securities Administrator
as provided in the Purchase Agreement), the Custodian shall promptly release the
related Custodial File in accordance with such Request for Release.
Section
10. Fees of
Custodian.
The
Custodian shall charge such fees and expenses for its services under this
Agreement as are set forth in a separate agreement between the Custodian, the
Purchaser and the Securities Administrator, the payment of which fees, shall be
solely the obligation of the Securities Administrator. The obligations of the
Securities Administrator to pay Custodian for such fees and expenses in
connection with services provided by Custodian hereunder shall survive the
termination of this agreement, or the resignation or removal of the
Custodian.
Section
11. Removal of
Custodian.
The
Trustee, with or without cause, may (but is not obligated to, unless requested
to do so by a majority of Certificateholders) (i) require the Custodian to
complete the
12
endorsements
on the Mortgage Notes and to complete and record the Assignments of Mortgage (in
either case, at no expense to the Custodian), and/or (ii) upon at least 45 days’
notice remove and discharge the Custodian from the performance of its duties
under this Agreement by written notice from the Trustee to the Custodian. Having
given notice of such removal, the Trustee promptly shall appoint a successor
Custodian (and if the Custodian is removed at the direction of a majority of
Certificateholders such successor shall be selected by such majority) to act on
behalf of the Trustee by written instrument, one original counterpart of which
instrument shall be delivered to the Trustee, with an original to the successor
Custodian. In addition, the Trustee may terminate the Custodian upon written
notice with respect to some or all of the Mortgage Loans upon the sale or other
transfer of such Mortgage Loans to a subsequent purchaser. In the event of any
removal, the Custodian shall, at the expense of the Trust, promptly transfer to
the successor custodian or subsequent purchaser, as directed, all Custodial
Files being administered under this Agreement relating to such Mortgage Loans,
and shall assign the Mortgages and endorse the Mortgage Notes to the successor
Custodian or subsequent purchaser if the endorsements on the Mortgage Notes and
the Assignments of Mortgages have been completed in the name of the
Custodian.
Section
12. Transfer of Custodial Files
Upon Termination.
If the
Custodian is furnished written evidence from the Trustee or the Master Servicer
that the Servicing Agreement has been terminated as to any or all of the
Mortgage Loans, upon written request of the Trustee or the Master Servicer, as
applicable, and, upon receipt by the Custodian, of proof satisfactory to the
Custodian of the ownership of the Mortgage Loans and receipt of Exhibit 3, the
Custodian shall release to such persons as the Purchaser shall designate the
Custodial Files relating to such Mortgage Loans, and shall assign the Mortgages
and endorse the Mortgage Notes as the Purchaser shall request at the Trust’s
expense.
Section
13. Examination of Custodial
Files.
Upon two
(2) Business Days’ prior written notice to the Custodian, the Trustee, the
Purchaser and their respective agents, accountants, attorneys and auditors will
be permitted during normal business hours to examine at the expense of the
requesting party 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 in the Mortgage Loan Package.
Section
14. 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, 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 ▇▇▇▇▇▇ Mae Mortgage-Backed Securities Selling and Servicing Guide or
by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac Seller’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 Purchaser and the Trustee upon
request.
13
Section
15. 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 and be one and the same
instrument.
Section
16. Periodic
Statements.
Upon the
written request of the Trustee or the Master Servicer, the Custodian shall
provide to the Trustee or the Master Servicer a list of all the Mortgage Loans
for which the Custodian holds a Custodial File pursuant to this Agreement (which
such list may be provided electronically by e-mail). 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 or repurchased since the date of
this Agreement.
Section
17. Governing
Law.
This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to the conflicts of laws principles thereof, and the
obligations, rights, and remedies of the parties hereunder shall be determined
in accordance with such laws.
Section
18. Copies of Mortgage
Documents.
Upon the
request of the Trustee or the Master Servicer and at the cost and expense of the
Trust, the Custodian shall provide to the Trustee or the Master Servicer copies
of the Mortgage Notes, Mortgages, Assignments of Mortgage and other documents
relating to one or more of the Mortgage Loans.
Section
19. 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
20. Termination by
Custodian.
The
Custodian may terminate its obligations under this Agreement upon at least 60
days’ notice to the Purchaser. In the event of such termination, the Purchaser
shall appoint a successor Custodian. The payment of such successor Custodian’s
fees and expenses shall be solely the responsibility of the Securities
Administrator. Upon such appointment, the Custodian shall (i) promptly notify
the Purchaser and (ii) promptly transfer to the successor Custodian, as
directed, all Custodial Files being administered under this Agreement, and shall
assign the Mortgages and endorse the Mortgage Notes to the successor Custodian.
In the event of termination by the Custodian, then such transfer shall be at the
expense of the Custodian; provided, however, in the event that the Custodian
terminates its obligations hereunder due in part to nonpayment of the
Custodian’s fees pursuant to Section 10, then such transfer shall be at
14
the
expense of the Purchaser. In the event that no successor Custodian shall have
been appointed and shall have accepted such appointment before the expiration of
such 60 day notice period, the terminating Custodian may petition any court of
competent jurisdiction to appoint a successor and promptly notify the Purchaser
of such petition.
Section
21. Entire Agreement;
Severability.
This
Agreement contains the entire agreement with respect to the rights and
obligations of the Custodian among the parties hereto. If any provisions of this
Custodial Agreement shall be held invalid or unenforceable, this Agreement shall
be construed as if not containing such provisions, and the rights and
obligations of the parties hereto shall be construed and enforced
accordingly.
Section
22. Term of
Agreement.
Unless
terminated pursuant to Section 11 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 Securities Administrator under the Servicing Agreement. In
such event all documents remaining in the Custodial Files shall be released in
accordance with the written instructions of the Purchaser.
Section
23. Notices.
Unless
otherwise specifically provided herein, all demands, notices and 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 on the
first page hereof, 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
24. Successors and
Assigns.
This
Agreement shall inure to the benefit of the successors and assigns of the
parties hereto. Any entity into which the Custodian may be merged or converted
or with which it may be consolidated, or any entity resulting from any merger,
conversion or consolidation to which the Custodian shall be a party, or any
entity 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 herein to the
contrary notwithstanding.
Section
25. Indemnification of the
Purchaser.
In the
event that the Custodian fails to produce a Mortgage Note, Assignment of
Mortgage or any other document related to a Mortgage Loan that was in its
possession pursuant to Section 2 within five (5) Business Days after required or
requested by the Purchaser or its
15
designee,
and provided, that (i) Custodian previously delivered to the Trustee or the
Master Servicer a Certification with respect to such document; (ii) such
document is not outstanding pursuant to a request for release of documents and
receipt in the form annexed hereto as Exhibit 3; and
(iii) such document was held by the Custodian on behalf of the Trustee (a “Custodial Delivery
Failure”), then the Custodian shall (a) with respect to any missing
Mortgage Note, promptly deliver to such Purchaser or its designee upon request,
a Lost Note Affidavit in the form of Exhibit 7
annexed hereto and (b)with respect to any missing document related to such
Mortgage Loan including but not limited to, a missing Mortgage Note, indemnify
the Trustee in accordance with the succeeding paragraph of this Section
25.
The
Custodian agrees to indemnify and hold the Purchaser, the Trustee and the Master
Servicer harmless against any and all direct liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements,
including reasonable attorneys’ fees, that may be imposed on, incurred by, or
asserted against it or them directly relating to or arising out of such
Custodial Delivery Failure. In no event shall the Custodian or its directors,
officers, agents and employees be liable for any special, indirect or
consequential damages 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. The foregoing indemnification shall survive any termination or
assignment of the Custodial Agreement.
Section
26. Indemnification of
Custodian.
Except as
set forth in Section 25, neither the Custodian nor any of its directors,
officers, agents or employees, shall be liable to any Person 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 a breach of its obligations hereunder, which
breach was caused by its or their own negligence, bad faith or willful
misconduct. In no event shall the Custodian or its directors, officers, agents
and employees be held liable to any Person 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.
The Trust
agrees to indemnify and hold the Custodian and its directors, officers, agents
and employees harmless against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements,
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 this
Custodial Agreement or any action taken or not taken by it or them hereunder
except for such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements 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,
officers, agents or employees. The foregoing indemnification shall survive any
termination or assignment of this Custodial Agreement or the removal or
resignation of the Custodian hereunder.
Section
27. Reliance of
Custodian.
16
(a) 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 certificate or opinion furnished to the
Custodian, believed by the Custodian to have been signed or presented by an
Authorized Representative and conforming in form only to the requirements of
this Custodial Agreement; but in the case of any certificate or opinion 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.
(b) In
the absence of bad faith on the part of the Custodian, the Custodian may rely
upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, coupon or any other
communication believed by the Custodian to be genuine and to have been signed or
made by an Authorized Representative.
(c) This
Section shall not be construed to limit the effect of any provision of this
Custodial Agreement respecting the rights or remedies of the Custodian or any
other right of the Custodian.
(d) No
provision of this Agreement shall require 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.
(e) Any
corporation into which 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 Custodian shall be a party, or any corporation succeeding
to the business of Custodian shall be the successor of 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.
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 Purchaser or its designee to the Custodian prior to any
shipment of any mortgage files and loan document hereunder at the cost and
expense of the Purchaser and the Purchaser will maintain such insurance against
loss or damage to mortgage files and loan documents as the Purchaser deems
appropriate. Without limiting the generality of the provisions of Sections 25
and 26 above, it is expressly agreed that in no event shall the Custodian have
any liability for any losses or damages to any person, including, without
limitation, the Purchaser or its designees arising out of actions of the
Custodian consistent with instructions of Purchaser or its designees. In the
event the Custodian does not receive such written instructions, the Custodian
may utilize any nationally recognized courier service and shall be indemnified
as provided herein for such usage.
17
Section
29. Authorized
Representatives.
Each
individual designated as an authorized representative of the parties hereto
(each, 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 their behalf, and the specimen signature for each such
Authorized Representative, initially authorized hereunder, is set forth on Exhibits 5, and
6 hereof,
respectively. From time to time, the parties hereto may, by delivering to the
others 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. Waiver of Trial by
Jury.
THE
PARTIES HERETO EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
Section
32. Submission To Jurisdiction;
Waivers.
The
Custodian hereby irrevocably and unconditionally:
(A) SUBMITS
FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT
THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS
THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
18
ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES
THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY
SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH HEREIN OR AT
SUCH OTHER ADDRESS OF WHICH THE PURCHASER SHALL HAVE BEEN NOTIFIED;
AND
(D) AGREES
THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER
JURISDICTION.
Section
33: Compliance With Regulation
AB
The
Purchaser and the Custodian further agree as follows:
(a) Defined
Terms: The following terms are used in this Section 33 as
defined below:
Commission: The
United States Securities and Exchange Commission.
Exchange
Act. The Securities Exchange Act of 1934, as
amended.
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, 1,531 (Jan. 7, 2005)) or by the staff
of the Commission, or as may be provided by the Commission or its staff from
time to time.
Securities
Act: The Securities Act of 1933, as amended.
Securitization
Transaction. Any transaction involving either (1) a sale or
other transfer of some or all of the Mortgage Loans directly or indirectly to an
issuing entity in connection with an issuance of publicly offered or privately
placed, rated or unrated mortgage-backed securities or (2) an issuance of
publicly offered or privately placed, rated or unrated securities, the payments
on which are determined primarily by reference to one or more portfolios of
residential mortgage loans consisting, in whole or in part, of some or all of
the Mortgage Loans.
Servicing
Criteria: The “servicing criteria” set forth in Item 1122(d)
of Regulation AB, as such may be amended from time to time.
(b) Additional Information to Be
Provided by the Custodian. For so long as the Certificates are
outstanding, for the purpose of satisfying the Company's reporting obligation
under the Exchange Act with respect to any class of Certificates, the Custodian
shall (a) notify the Company in writing of any material litigation or
governmental
19
proceedings
pending against the Custodian that would be material to Certificateholders, and
(b) provide to the Company a written description of such
proceedings. Any notices and descriptions required under this Section
33 shall be given no later than five Business Days prior to the Determination
Date following the month in which the Custodian has knowledge of the occurrence
of the relevant event. As of the date the Company or Master Servicer
files each Report on Form 10-D or Form 10-K with respect to the Certificates,
the Custodian will be deemed to represent that any information previously
provided under this Section 33, if any, is materially correct and does not have
any material omissions unless the Custodian has provided an update to such
information.
(c) Report on Assessment of
Compliance and Attestation: For so long as the Purchaser or
the Master Servicer, as applicable, is filing an annual report on Form 10-K in
accordance with the Exchange Act and the rules and regulations of the
Commission, on or before March 12 of each calendar year, commencing in 2008, the
Custodian shall:
(A) deliver
to the Purchaser and the Master Servicer a report (in form and
substance reasonably satisfactory to the Purchaser and such Master Servicer )
regarding the Custodian’s assessment of compliance with the Servicing Criteria
during the immediately preceding calendar year, as required under Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report shall be addressed to the Purchaser and the Master
Servicer and signed by an authorized officer of the Custodian, and
shall address each of the Servicing Criteria specified on a certification
substantially in the form of Exhibit 9 hereto. The Custodian shall
not, without the prior written consent of the Purchaser and the Master Servicer,
cease to perform any of the Servicing Criteria specified on such certification;
and
(B) deliver
to the Purchaser and the Master Servicer a report of a registered public
accounting firm reasonably acceptable to the Purchaser and the Master Servicer
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.
(d) Indemnification
(A) The
Custodian shall indemnify the Purchaser, each affiliate of the Purchaser, and
each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person (including,
but not limited to, any Master Servicer if applicable) responsible for the
preparation, execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for execution of
a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange
Act with respect to such Securitization Transaction; each broker dealer acting
as underwriter, placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (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, agents and affiliates of each of the
foregoing and of the Depositor (each, an “Indemnified Party”), and shall hold
each of them harmless from and against any claims, 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:
20
(i) (A)
any untrue statement of a material fact contained or alleged to be contained in
any information, report, certification, data, accountants’ attestation or other
material provided under this Section 33 by or on behalf of the Custodian, or
provided under this Section 33 by or on behalf of any Subservicer or
Subcontractor (collectively, the “Custodian Information”), or (B) the omission
or alleged omission to state in the Custodian Information a material fact
required to be stated in the Custodian Information or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or;
(ii) any
breach by the Custodian of its obligations under this Section 33, including
particularly any failure by the Custodian, any Subservicer or any Subcontractor
to deliver any information, report, certification, accountants’ letter or other
material when and as required under this Section 33, including any failure by
the Custodian to identify any Subcontractor “participating in the servicing
function” within the meaning of Item 1122 of Regulation AB;
(iii) the
negligence, bad faith or willful misconduct of the Custodian in connection with
its performance under this Section 33.
If the
indemnification provided for herein is unavailable or insufficient to hold
harmless an Indemnified Party, then the Custodian agrees that it shall
contribute to the amount paid or payable by such Indemnified Party as a result
of any claims, losses, damages or liabilities incurred by such Indemnified Party
in such proportion as is appropriate to reflect the relative fault of such
Indemnified Party on the one hand and the Custodian on the
other.
In the
case of any failure of performance described in clause (d)(ii) of this Section,
the Custodian shall promptly reimburse the Purchaser, any Depositor, as
applicable, and each Person responsible for the preparation, execution or filing
of any report required to be filed with the Commission with respect to such
Securitization Transaction, or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to such
Securitization Transaction, for all costs reasonably incurred by each such party
in order to obtain the information, report, certification, accountants’ letter
or other material not delivered as required by the Custodian, any Subservicer,
or any Subcontractor.
This
indemnification shall survive the termination of this Agreement or the
termination of any party to this Agreement.
[SIGNATURE
PAGE FOLLOWS]
21
EXECUTION
VERSION
IN
WITNESS WHEREOF, the parties hereto have caused their names to be duly signed
hereto by their respective officers thereunto duly authorized, all as of the
date first above written.
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▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE
CAPITAL
HOLDINGS LLC,
successor
by merger to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage
Capital Inc., as Purchaser
By /s/ ▇▇▇▇▇▇▇
▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇
Title:
Vice President
▇▇▇▇▇▇
▇▇▇▇▇▇▇ CREDIT CORPORATION, as Seller and Servicer
By /s/ ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Title:
COO
LASALLE
BANK NATIONAL ASSOCIATION, as Trustee of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan
Trust 2007-14AR
By /s/ ▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Master Servicer and Securities
Administrator
By /s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President
▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Custodian
By /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title:
Vice President
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EXECUTION
VERSION
EXHIBIT
1
REVIEW
PROCEDURES
This
Exhibit 1 sets
forth the Custodian’s review procedures for each item listed below delivered by
the Purchaser or its designee pursuant to the Custodial Agreement, dated as of
October 1, 2007 (the “Agreement”), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital
Holdings LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Credit Corporation, LaSalle Bank National
Association and ▇▇▇▇▇ Fargo Bank, National Association, as Master Servicer,
Securities Administrator and Custodian to which this Exhibit is attached.
Capitalized terms used herein and not defined herein shall have the meanings
ascribed to them in the Agreement.
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a)
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the
Mortgage Note and the Mortgage each appear to bear an original signature
or signatures purporting to be the signature or signatures of the Person
or Persons named as the maker and Mortgagor or grantor, or in the case of
copies of the Mortgage permitted under Section 2 of the Agreement, that
such copies bear a reproduction of such
signature;
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b)
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amount
of the Mortgage Note is the same as the amount specified on the related
Mortgage;
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c)
|
the
mortgagee is the same as the payee on the Mortgage
Note;
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d)
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the
Mortgage contains a legal description other than address, city and
state;
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e)
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the
notary section (acknowledgment) is present and attached to the related
Mortgage and is signed;
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f)
|
neither
the original Mortgage Note, nor the copy of the Mortgage delivered
pursuant to the Agreement, nor the original Assignment of Mortgage contain
any notations on their face which appear in the good faith judgment of the
Custodian to evidence any claims, liens, security interests, encumbrances
or restrictions on transfer;
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g)
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the
Mortgage Note is endorsed in blank by the named holder or payee
thereof;
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h)
|
each
original Assignment of Mortgage (or, in lieu of an original signature page
of the Assignment of Mortgage, a facsimile or a Portable Document Format
(PDF) copy thereof) and any intervening assignment of mortgage, if
applicable, appears to bear the original, or copy, as applicable,
signature of the named mortgagee or beneficiary including any subsequent
assignors, as applicable, or in the case of copies permitted under Section
2, that such copies appear to bear a reproduction of such signature or
signatures and the officer’s certificate of the Seller, or certification
of the title company, escrow agent or closing attorney accompanying such
copies appears to bear an original signature or a reproduction of such
signature, and the intervening assignments of mortgage evidence a complete
chain of assignment and transfer of the related Mortgage from the
originating Person to the Seller (or, in the case of a MERS Designated
Mortgage Loan, MERS);
|
Exh.
1-1
|
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i)
|
the
date of each intervening assignment is on or after the date of the related
Mortgage and/or the immediately preceding assignment, as the case may
be;
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j)
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the
notary section (acknowledgment) is present and attached to each
intervening assignment and is
signed;
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k)
|
based
upon a review of the Mortgage Note (and, in the case of a MERS Designated
Mortgage Loan and item (48), the MERS Report), items (1), (2), (3), (11),
(15), (19), (20), (28), (33), (40), (41) and (48) as set forth in the
Mortgage Loan Schedule delivered by the Seller to the Custodian are
correct;
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l)
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with
respect to each MERS Designated Mortgage Loan, the Purchaser is named as
the “Investor” on the MERS System (provided the Custodian shall only be
required to verify item (48) in clause k and the information in this
clause 1 in connection with the initial Certification regarding each
Mortgage Loan Package);
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m)
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with
respect to each Mortgage Loan that is not a Co-op Loan, the original
mortgagee policy of title insurance or, in the event such original title
policy is unavailable, a certified true copy of the related policy binder
or commitment for title certified to be true and complete by the title
insurance company contains the correct Mortgagor(s) name and a legal
description, and the insured amount is no less than the amount specified
on the related Mortgage; and
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n)
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with
respect to each Co-op Loan, the Custodian has received (i) a copy of the
Co-op Lease and the assignment of such Co-op Lease, with all intervening
assignments showing a complete chain of title and an assignment thereof by
Seller; (ii) the stock certificate together with an undated stock power
relating to such stock certificate executed in blank; and (iii) if
applicable, a filed UCC-3 Assignment of the subject security interest
showing a complete chain of title, together with an executed UCC-3
Assignment of such security interest by the
Seller.
|
Exh
1-2
EXECUTION
VERSION
EXHIBIT
2-A
FORM OF
INITIAL CUSTODIAN CERTIFICATION
October
31, 2007
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, National Association
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle
Bank National Association
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Global Securities and Trust Services MSM 2007-14AR
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Re:
|
Pooling and Servicing
Agreement (“Pooling
and Servicing Agreement”) relating to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-14AR, Mortgage Pass-Through
Certificates, Series
2007-14AR
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and (f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its review and examination and only as to the foregoing documents,
such documents appear regular on their face and related to such Mortgage Loan
and (d) each Mortgage Note has been endorsed and each assignment of Mortgage has
been delivered as provided in Section 2.01 of the Pooling and Servicing
Agreement. The Custodian has made no independent examination of any documents
contained in each Mortgage File beyond the review specifically mentioned
above. The Custodian makes no representations as to: (i)
the validity, legality, sufficiency, enforceability or genuineness of any of the
documents delivered in accordance with Section 2.01 of the Pooling and Servicing
Agreement or any of the Mortgage
▇▇▇.
▇-▇-▇
Loans
identified in the Mortgage Loan Schedule, or (ii) the collectibility,
insurability, effectiveness or suitability of any such Mortgage
Loan.
The
Custodian acknowledges receipt of notice that the Depositor has granted to the
Trustee for the benefit of the Certificateholders a security interest in all of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
▇▇▇.
▇-▇-▇
Capitalized
terms used herein without definition shall have the meaning assigned to them in
the Pooling and Servicing Agreement.
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Custodian
By:
____________________________________
Authorized
Representative
|
▇▇▇.
▇-▇-▇
EXECUTION
VERSION
EXHIBIT
2-B
FORM OF
FINAL CUSTODIAN CERTIFICATION
|
____________________________________
[90
days from Closing Date]
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Fargo Bank, National Association
▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle
Bank National Association
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Global Securities and Trust Services MSM 2007-14AR
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Re:
|
Pooling and Servicing
Agreement (“Pooling
and Servicing Agreement”) relating to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Loan Trust 2007-14AR, Mortgage Pass-Through
Certificates, Series
2007-14AR
|
Ladies
and Gentlemen:
In
accordance with and subject to the provisions of Section 2.02 of the Pooling and
Servicing Agreement, the undersigned, as Custodian, hereby certifies that,
except for the exceptions noted on the schedule attached hereto, (a) all
documents required to be delivered to the Custodian pursuant to Sections
2.01(a)(i) through (iv) and (ix)(b), (c) (solely to the extent of the UCC-1),
(g) and (h), and if delivered to it, the documents identified in Section
2.01(a)(v) through (vii) and (ix)(c) (solely to the extent of the UCC-3) and (f)
of the Pooling and Servicing Agreement are in its possession, (b) such documents
have been reviewed by it and have not been mutilated, damaged, defaced, torn or
otherwise physically altered, and such documents relate to such Mortgage Loan,
(c) based on its examination and only as to the foregoing documents, these
documents with respect to each Mortgage Loan accurately reflect the information
contained in the Mortgage Note and Mortgage and (d) each Mortgage Note has been
endorsed and each assignment of Mortgage has been delivered as provided in
Section 2.01 of the Pooling and Servicing Agreement. The Custodian has made no
independent examination of any documents contained in each Mortgage File beyond
the review specifically mentioned above. The Custodian makes no
representations as to: (i) the validity, legality, sufficiency,
enforceability or genuineness of any of the documents delivered in accordance
with Section 2.01 of the Pooling
▇▇▇.
▇-▇-▇
and
Servicing Agreement or any of the Mortgage Loans identified in the Mortgage Loan
Schedule, or (ii) the collectibility, insurability, effectiveness or suitability
of any such Mortgage Loan.
The
Custodian acknowledges receipt of notice that the Depositor has granted to the
Trustee for the benefit of the Certificateholders a security interest in all of
the Depositor’s right, title and interest in and to the Mortgage
Loans.
Capitalized
terms used herein without definition shall have the meaning assigned to them in
the Pooling and Servicing Agreement.
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▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION
as
Custodian
By:
___________________________________
Authorized
Representative
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▇▇▇.
▇-▇-▇
EXECUTION
VERSION
EXHIBIT
3
REQUEST FOR RELEASE OF
DOCUMENTS AND RECEIPT
To: [Address]
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Re:
|
The
Custodial Agreement, dated as of October 1, 2007, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Mortgage Capital Holdings LLC as the Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Credit
Corporation, as the Seller and the Servicer, LaSalle Bank National
Association, as the Trustee, ▇▇▇▇▇ Fargo Bank, National Association, as
the Master Servicer and Securities Administrator and ▇▇▇▇▇ Fargo Bank,
National Association as the
Custodian.
|
In
connection with the administration of the Mortgage Loans held by you as the
Custodian on behalf of the Purchaser, we request the release, and acknowledge
receipt, of the (Custodial File/[specify documents]) for the Mortgage Loan
described below, for the reason indicated.
Mortgagor’s Name Address
& Zip Code:
Mortgage Loan
Number:
Send Custodial File
to:
Reason for Requesting
Documents (check one)
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___1.
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Mortgage
Loan Paid in Full. (The Purchaser or its designee hereby certifies that
all amounts paid in connection therewith have been
received.)
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___2.
|
Mortgage
Loan Repurchase Pursuant to Section 9 of the related Purchase Agreement.
(The Purchaser or its designee hereby certifies that the repurchase price
paid in connection therewith has been
received.)
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___3.
|
Mortgage
Loan Liquidated By ____________ (The Purchaser or its designee hereby
certifies that all proceeds of foreclosure, insurance, or other
disposition have been finally received and
credited.)
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___4.
|
Mortgage
Loan in Foreclosure
|
Exh.
3-1
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___5.
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Other
(explain) _______________________
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If box 1,
2 or 3 above is checked, and if all or part of the Custodial File was previously
released to us, please release to us our previous request and receipt on file
with you, as well as any additional documents in your possession relating to the
specified Mortgage Loan.
If box 4
or 5 above is checked, upon our return of all of the above documents to you as
the Custodian, please acknowledge your receipt by signing in the space indicated
below, and returning this form.
Capitalized
terms used but not defined herein shall have the respective meanings assigned to
them in the above-referenced Custodial Agreement.
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[TRUSTEE
OR MASTER SERVICER]
By:
____________________________
Name:
Title:
Date:
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Exh.
3-2
EXECUTION
VERSION
EXHIBIT
4
FORM OF OPINION OF COUNSEL
TO THE CUSTODIAN
(Date)
▇▇▇▇▇▇
▇▇▇▇▇▇▇ Mortgage Capital Holdings LLC
1221
Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LaSalle
Bank National Association
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
Global Securities and Trust Services MSM 2007-14AR
Ladies
and Gentlemen:
We have
acted as counsel to ▇▇▇▇▇ Fargo Bank, National Association (the “Custodian”) in
connection with the execution and delivery of that certain Custodial Agreement,
dated as of October 1, 2007 (the “Agreement”), among
you, as the Purchaser, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Credit Corporation, as the Seller and the
Servicer, LaSalle Bank National Association, as the Trustee, ▇▇▇▇▇ Fargo Bank,
National Association, as the Master Servicer and Securities Administrator and
▇▇▇▇▇ Fargo Bank, National Association as the Custodian with respect to certain
conventional residential Mortgage Loans.
We have
reviewed the Agreement and such other matters as we have deemed appropriate in
order to deliver the opinions contained herein.
In
rendering the opinions expressed below, we have assumed, without any independent
investigation or verification of any kind, that you are duly organized, validly
existing and in good standing under the laws of the jurisdiction of your
incorporation and have full power and authority to execute, deliver and perform
the Agreement, and that the execution, delivery and performance of the Agreement
by you has been duly authorized by all requisite corporate action and has been
duly executed and delivered by you.
Based
upon the foregoing, it is our opinion that:
1. The
Custodian is a national banking association, duly organized, validly existing
and in good standing under the laws of the United States of America with full
right, power and authority to enter into, execute and deliver the Agreement. The
Custodian is eligible to act as custodian under the terms of the
Agreement.
2. The
Agreement has been duly authorized, executed and delivered by the Custodian and
constitutes the legal, valid and binding agreement of and is enforceable against
the Custodian in accordance with its terms, subject to bankruptcy laws and other
similar laws of
Exh.
4-1
general
application affecting rights of creditors and subject to the application of the
rules of equity, including those respecting the availability of specific
performance.
[We are
members of the Bar of the State of ___________. We do not express herein any
opinion as to matters governed by any law other than the law of the State of
_________, the laws of the State of _____________applicable to
____________corporations and the federal law of the United States of
America.]
This
opinion is given to you for your sole benefit, and no other person or entity is
entitled to rely hereon, except that the purchaser or purchasers to which you
initially and directly resell the Mortgage Loans may rely on this opinion as if
it were addressed to them as of its date.
Very
truly yours,
Exh.
4-2
EXECUTION
VERSION
EXHIBIT
5
AUTHORIZED REPRESENTATIVES
OF THE CUSTODIAN
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NAME
|
SPECIMEN
SIGNATURE
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Exh.
5-1
EXECUTION
VERSION
EXHIBIT
6
AUTHORIZED REPRESENTATIVES
OF THE PURCHASER
|
NAME
|
SPECIMEN
SIGNATURE
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Exh.
6-1
EXECUTION
VERSION
EXHIBIT
7
FORM OF LOST NOTE
AFFIDAVIT
I, as
_______________________ (title) of ▇▇▇▇▇ Fargo Bank, National Association (the
“Custodian”), am authorized to make this Lost Note Affidavit on behalf of ▇▇▇▇▇
Fargo Bank, National Association. In connection with the administration of the
Mortgage Loans held by ▇▇▇▇▇ Fargo Bank, National Association as Custodian on
behalf of _______________ (the “Investor”), ______________(hereinafter called
“Deponent”), being duly sworn, deposes and says that:
1. Custodian’s
address is:
[CUSTODIAN’S
Address]
2. Custodian
previously delivered to the Investor a signed Certification with respect to the
Mortgage Note referred to below;
3. Such
Mortgage Note was endorsed or sold to the Investor by ________________ pursuant
to the terms and provisions of a ______________Agreement dated and effective as
of ___________ ______, _______;
4. Such
Mortgage Note is not outstanding pursuant to a Request for Release of
Documents;
5. Such
Mortgage Note (hereinafter called the “Original”) has been lost;
6. Deponent
has made or has caused to be made diligent search for Original and has been
unable to find or recover same;
7. The
Custodian was the Custodian of the Original at the time of loss;
and
8. Deponent
agrees that, if the Original should ever come into Custodian’s possession,
custody or power, Custodian will immediately and without consideration surrender
Original to the Investor.
9. Attached
hereto is a true and correct copy of (i) the Mortgage Note, endorsed in blank by
the Mortgagee, and (ii) the Mortgage or Deed of Trust [strike one] with evidence
of recording thereon which secures the Note.
10. Deponent
hereby agrees that the Custodian (a) shall indemnify and hold harmless
[INVESTOR], its successors, and assigns, against any loss, liability or damage,
including reasonable attorney’s fees, resulting from the unavailability of the
Mortgage Notes, including but not limited to any loss, liability or damage
arising from (i) any false statement contained in this Lost Note Affidavit, (ii)
any claim of any party that it has already purchased a mortgage loan evidenced
by the lost Mortgage Note or any interest in such mortgage loan, (iii) any claim
of any borrower with respect to the existence of terms of a Mortgage Loan
evidenced by the lost Mortgage Note, (iv) the issuance of new instrument in lieu
thereof and (v) any claim
Exh.
7-1
whether
or not based upon or arising from honoring or refusing to honor the Original
when presented by anyone (items (i) through (iv) above are hereinafter referred
to as the “Losses”) and (b) if required by any Rating Agency in connection with
placing such lost Mortgage Note into a securitization transaction, shall obtain
a surety bond from an insurer acceptable to the applicable Rating Agency in an
amount acceptable to such Rating Agency to cover any Losses with respect to such
lost Mortgage Note.
11. Capitalized
terms used but not defined herein shall have the respective meanings given them
in the Custodial Agreement, dated as of August 28, 2005, between ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Credit Corporation and ▇▇▇▇▇ Fargo Bank, National
Association.
12. This
Lost Note Affidavit is intended to be relied on by the Investor, its successors,
and assigns and _________________ represents and warrants that it has the
authority to perform its obligations under this Lost Note
Affidavit.
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EXECUTED
THIS____day of_________,
______,
on behalf of the Custodian by:
___________________________________
Signature
___________________________________
Typed
Name & Title
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On this
________day of _____________________, ________, before me
appeared _______________________________________________________, to
me personally known, who being duly sworn did say that she/he is the
_________________________________ of _________________, and that said Lost Note
Affidavit was signed and sealed on behalf of such corporation and said
_______________________acknowledged this instrument to be the free act
and deed of said corporation.
_______________________
Notary
Public in and for the
State of
________________
My
Commission expires: _______________
Exh.
7-2
EXECUTION
VERSION
EXHIBIT
8
MORTGAGE LOAN
SCHEDULE
(attached
to the PSA)
▇▇▇.
▇-▇
▇▇▇▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by the Custodian shall address, at a
minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
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SERVICING
CRITERIA
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APPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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General
Servicing Considerations
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1122(d)(1)(i)
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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)
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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)
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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)
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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)
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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)
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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)
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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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1122(d)(2)(iv)
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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)
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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)
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Unissued
checks are safeguarded so as to prevent unauthorized
access.
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1122(d)(2)(vii)
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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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▇▇▇.
▇-▇
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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APPLICABLE
SERVICING
CRITERIA
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Reference
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Criteria
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Investor
Remittances and Reporting
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1122(d)(3)(i)
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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)
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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)
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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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1122(d)(3)(iv)
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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)
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Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
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X
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1122(d)(4)(ii)
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Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
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X
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1122(d)(4)(iii)
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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)
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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)
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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)
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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)
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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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1122(d)(4)(viii)
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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)
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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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▇▇▇.
▇-▇
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▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
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APPLICABLE
SERVICING
CRITERIA
|
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Reference
|
Criteria
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1122(d)(4)(x)
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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)
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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)
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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)
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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)
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Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded in
accordance with the transaction agreements.
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1122(d)(4)(xv)
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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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Exh.
9-3