HSBC BANK USA, NATIONAL ASSOCIATION, as Indenture Trustee
for the PHH Mortgage Trust,
Series 2008-CIM2, Mortgage-Backed Notes,
WELLS FARGO BANK, N.A.,
as Custodian,
and
PHH MORTGAGE CORPORATION,
as Servicer,
CUSTODIAL AGREEMENT
As of July 1, 2008
TABLE OF CONTENTS
Page
Section 1.
Definitions.....................................................................................2
Section 2.
Delivery of Custodial
Files.....................................................................9
Section 3.
Custodian's Receipt, Examination and Certification of Mortgage
Files; Initial
Trust Receipt Delivered by the
Custodian.......................................................10
Section 4.
Obligations of the
Custodian...................................................................10
Section 5.
Final Trust
Receipt............................................................................12
Section 6.
Future
Defects.................................................................................13
Section 7.
Release for
Servicing..........................................................................13
Section 8.
Release for
Payment............................................................................14
Section 9.
Fees and Expenses of
Custodian.................................................................14
Section 10.
Removal of
Custodian...........................................................................15
Section 11.
Transfer of Custodial
Files....................................................................15
Section 12.
Examination of Custodial
Files.................................................................15
Section 13.
Insurance of
Custodian.........................................................................15
Section 14.
Counterparts...................................................................................16
Section 15.
Periodic
Statements............................................................................16
Section 16.
GOVERNING
LAW..................................................................................16
Section 17.
Copies of Mortgage
Documents...................................................................16
Section 18.
No Adverse Interest of
Custodian...............................................................16
Section 19.
Termination by
Custodian.......................................................................16
Section 20.
Term of
Agreement..............................................................................17
Section 21.
Notices........................................................................................17
Section 22.
Successors and
Assigns.........................................................................17
Section 23.
Indemnification of
Custodian...................................................................17
Section 24.
Reliance of
Custodian..........................................................................18
Section 25.
Transmission of Custodial
Files................................................................19
Section 26.
Authorized
Representatives.....................................................................19
Section 27.
Reproduction of
Documents......................................................................20
Section 28.
Custodian
Representations......................................................................20
Section 29.
Amendment......................................................................................20
Section 30.
Limitations on the Responsibilities of the
Custodian...........................................20
i
EXHIBITS
SCHEDULE 1
DOCUMENTS TO REVIEW
EXHIBIT 1
FORM OF TRUST RECEIPT AND INITIAL CERTIFICATION
EXHIBIT 2
FORM OF FINAL TRUST RECEIPT
EXHIBIT 3
FORM OF REQUEST FOR RELEASE OF CUSTODIAL FILE
EXHIBIT 4
AUTHORIZED REPRESENTATIVES OF INDENTURE TRUSTEE
EXHIBIT 5
AUTHORIZED REPRESENTATIVES OF CUSTODIAN
EXHIBIT 6
AUTHORIZED REPRESENTATIVES OF THE SERVICER
EXHIBIT 7
[RESERVED]
EXHIBIT 8
[RESERVED]
EXHIBIT 9
FORM OF LIMITED POWER OF ATTORNEY
EXHIBIT 10
MORTGAGE LOAN SCHEDULE
EXHIBIT 11
SUBSTITUTE MORTGAGE LOANS
EXHIBIT 12
ASSESSMENTS OF COMPLIANCE AND ATTESTATION REPORTS SERVICING
CRITERIA
EXHIBIT 13
RECEIPT OF MORTGAGE NOTES
ii
THIS
CUSTODIAL
AGREEMENT,
dated as of July 1,
2008,
among
HSBC Bank
USA,
National
Association,
a
national banking association (the "Indenture
Trustee"),
having an address at 452 Fifth Avenue, New York, New York
10018, not individually but solely as indenture
trustee for PHH Mortgage Trust,
Series 2008-CIM2
Mortgage-Backed
Notes,
Wells
Fargo
Bank,
N.A.
as
custodian
(the
"Custodian"),
having
an
address
at 751
Kasota
Avenue,
Minneapolis,
Minnesota
55414 and PHH Mortgage
Corporation,
as servicer (the
"Servicer"),
having an address at
3000 Leadenhall Road, Mt. Laurel, NJ 08054.
W I T N E S S E T H
WHEREAS,
Credit Suisse First Boston Mortgage
Acceptance
Corp. (the
"Depositor") has agreed to
purchase certain
conventional,
hybrid
adjustable-rate
and fixed-rate mortgage loans (the "Mortgage Loans") from
Chimera Investment Corporation (the "Seller"),
pursuant to the terms and conditions of the Assignment,
Assumption
and
Recognition
Agreement among the Seller,
the Servicer,
the Depositor,
PHH Mortgage Trust,
Series 2008-CIM2
(the "Trust"), and acknowledged and agreed to by Wells Fargo Bank,
N.A., as master servicer;
WHEREAS,
the Servicer has agreed to service the Mortgage
Loans on behalf of the Trust
pursuant
to the Mortgage Loan Flow Purchase,
Sale & Servicing
Agreement (the "Purchase and Servicing
Agreement") dated as
of December 14,
2007 among the Servicer,
Bishop's Gate Residential
Mortgage Trust and the Seller,
which will be
assigned to the Trust;
WHEREAS,
the Mortgage
Loans shall be subject to the terms and
conditions
of that certain Sale
and
Servicing
Agreement,
dated as of July 1, 2008 (the "Sale and
Servicing
Agreement"),
among the Trust,
the
Seller,
the
Depositor,
Wells Fargo Bank,
N.A.,
a national
banking
association,
as master
servicer (in such
capacity,
the
"Master
Servicer")
and
as
securities
administrator
(in
such
capacity,
the
"Securities
Administrator") and the Indenture Trustee;
WHEREAS,
the
Mortgage
Loans and payments
thereon will secure
certain
notes,
(the
"Notes")
issued by the Trust pursuant to the Indenture (the
"Indenture)
dated as of July 25, 2008,
among the Issuer,
the
Indenture Trustee and the Securities Administrator.
WHEREAS,
the Custodian is a national banking association
chartered under the laws of the United
States of America
and
regulated
by the
Comptroller
of the
Currency,
and is
otherwise
authorized
to act as
Custodian pursuant to this Agreement; and
WHEREAS,
the Indenture
Trustee
desires to have the Custodian take
possession of the Mortgages
and Mortgage Notes
relating to the Mortgage
Loans,
which are
identified on the Mortgage Loan Schedule
attached
hereto as
Exhibit 10,
along with certain
other
documents
specified
herein,
as a custodian
of the
Indenture
Trustee, in accordance with the terms and conditions hereof.
NOW THEREFORE,
in consideration of the mutual undertakings herein expressed,
the parties hereto
hereby agree as follows:
Section 1.
Definitions.
Adjustment
Date: With respect to each
adjustable-rate
Mortgage Loan, the date set forth in the
related
Mortgage Note on which the Mortgage
Interest
Rate on such
Mortgage Loan is adjusted in accordance
with
the terms of the Mortgage Note.
Agreement:
This Custodial
Agreement and all amendments and
attachments
hereto and supplements
hereof.
ALTA: American Land Title Association or any successor thereto.
Appraised Value: With respect to any Mortgaged
Property,
the lesser of (i) the value thereof as
determined
by an
appraisal
made
for the
originator
of the
Mortgage
Loan at the time of
origination
of the
Mortgage Loan by an appraiser who met the minimum
requirements of FNMA and FHLMC and (ii) the
purchase price paid
for the related Mortgaged Property by the Mortgagor with the
proceeds of the Mortgage Loan,
provided,
however, in
the case of a
Refinanced
Mortgage
Loan,
such value of the
Mortgaged
Property
is based
solely upon the value
determined by an appraisal made for the originator of such
Refinanced
Mortgage Loan at the time of origination of
such Refinanced Mortgage Loan by an appraiser who met the minimum
requirements of FNMA and FHLMC.
Assignment
of
Mortgage:
An
individual
assignment
of the
Mortgage,
notice of
transfer
or
equivalent
instrument
in
recordable
form,
sufficient
under the laws of the
jurisdiction
wherein the related
Mortgaged Property is located to reflect the sale of the Mortgage
Loan to the Indenture Trustee.
Assignment
of
Proprietary
Lease:
With
respect
to a
Cooperative
Loan,
the
assignment
or
mortgage of the related Proprietary Lease from the Mortgagor to the
originator of the Cooperative Loan.
Business
Day:
Any day other
than
(i) a
Saturday
or Sunday or (ii) or a day on which the New
York Stock
Exchange or Federal
Reserve is closed or on which
banking and
savings and loan
institutions
in the
State of New York,
the State of
California,
the State of
Minnesota,
the State of
Maryland or the State of New
Jersey, are authorized or obligated by law or executive order to be
closed.
Closing Date:
July 25, 2008.
Commission:
The United States Securities and Exchange Commission.
Cooperative
Corporation:
With
respect
to any
Cooperative
Loan,
the
cooperative
apartment
corporation
that holds
legal title to the
related
Cooperative
Property
and grants
occupancy
rights to units
therein to stockholders through Proprietary Leases or similar
arrangements.
Cooperative
Lien Search:
A search for (a) federal
tax liens,
mechanics'
liens,
lis pendens,
judgments of record or otherwise
against
(i) the
Cooperative
Corporation and (ii) the seller of the Cooperative
Unit,
(b) filings
of Financing
Statements
and (c) the deed of the
Cooperative
Property
into the
Cooperative
Corporation.
2
Cooperative
Loan:
A Mortgage
Loan that is secured by a first lien on and a perfected
security
interest in Cooperative
Shares and the related
Proprietary Lease granting
exclusive rights to occupy the related
Cooperative Unit in the building owned by the related Cooperative
Corporation.
Cooperative
Pledge
Agreement:
The
specific
agreement
creating a first lien on and pledge of
the Cooperative Shares and the appurtenant Proprietary Lease
securing a Cooperative Loan.
Cooperative
Property:
With respect to any Cooperative
Loan, all real property and improvements
thereto and rights therein and thereto owned by a Cooperative
Corporation
including without
limitation the land,
separate dwelling units and all common elements.
Cooperative
Shares:
With
respect to any
Cooperative
Loan,
the
shares of stock
issued by a
Cooperative Corporation and allocated to a Cooperative Unit and
represented by stock certificates.
Cooperative
Unit:
With
respect
to any
Cooperative
Loan,
a specific
unit in a
Cooperative
Property.
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.
Custodian:
Wells Fargo Bank, N.A., or its successor in interest or assigns,
or any successor to
the Custodian under this Agreement as herein provided.
Cut-off Date: July 1, 2008.
Depositor:
Credit Suisse First Boston
Mortgage
Acceptance
Corp., or its successor in interest
or assigns.
Due Date:
The day of each
calendar
month on which the
Monthly
Payment
is due on a
Mortgage
Loan, exclusive of any days of grace.
Exchange Act:
The Securities and Exchange Act of 1934, as amended.
FHLMC: Freddie Mac or any successor thereto.
Final Trust Receipt:
Trust receipt and
certification,
in the form annexed hereto as Exhibit 2,
as to each
Mortgage
Loan,
which Final Trust
Receipt is delivered to the
Indenture
Trustee (with a copy to the
Depositor,
the Master
Servicer,
the Servicer and the Seller) by the Custodian
pursuant to the
requirements
of
Section 5 below.
3
Financing
Statement:
A
financing
statement
in the form of a UCC-1 or UCC-3,
as
applicable,
filed pursuant to the Uniform
Commercial Code to perfect a security interest in the Cooperative
Shares and Pledge
Instruments.
FNMA: Fannie Mae or any successor thereto.
Gross Margin:
With respect to any
adjustable-rate
Mortgage Loan, the fixed
percentage
amount
set
forth
in the
Mortgage
Note and the
related
Mortgage
Loan
Schedule
that is
added to the
Index on each
Adjustment
Date in accordance with the terms of the related
Mortgage Note to determine the new Mortgage
Interest
Rate for such Mortgage Loan.
Indenture Trustee:
As defined in the recitals hereto.
Index:
As of any Adjustment
Date,
the index
applicable to the
determination
of the Mortgage
Rate on each
adjustable-rate
Mortgage
Loan will
generally
be the average of the
interbank
offered
rates for
one-year
United
States dollar
deposits in the London market as published in The Wall Street
Journal and as most
recently
available
either (a) as of the first Business Day forty-five
(45) days prior to such Adjustment Date or
(b) as of the first
Business Day of the month
preceding
the month of such
Adjustment
Date, as specified in the
related Mortgage Note.
Lender Paid Mortgage
Insurance
Policy or LPMI Policy: A policy of mortgage
guaranty
insurance
issued by an insurer that meets the
requirements
of FNMA and FHLMC in which the owner or servicer of the Mortgage
Loan is responsible for the premiums associated with such mortgage
insurance policy.
Master Servicer:
Wells Fargo Bank, N.A., or its successor in interest or assigns.
Maximum Mortgage Interest Rate: With respect to each
adjustable-rate
Mortgage Loan, an interest
rate that is set forth on the
mortgage
loan
schedule
and in the related
Mortgage
Note and that is the maximum
interest rate to which the Mortgage Interest Rate on such Mortgage
Loan may be increased on any Adjustment Date.
4
MERS:
Mortgage
Electronic
Registration
Systems,
Inc., a
corporation
organized and existing
under the laws of the State of Delaware, or any successor thereto.
MERS System: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN:
The
mortgage
identification
number of Mortgage
Loans
registered
with MERS on the MERS
System.
Minimum Mortgage Interest Rate: With respect to each
adjustable-rate
Mortgage Loan, an interest
rate that is set forth on the
mortgage
loan
schedule
and in the related
Mortgage
Note and that is the minimum
interest rate to which the Mortgage Interest Rate on such Mortgage
Loan may be decreased on any Adjustment Date.
MOM Loan:
Any Mortgage Loan as to which MERS is acting as
mortgagee,
solely as nominee for the
originator of such Mortgage Loan and its successors and assigns.
Monthly Payment:
With respect to any Mortgage Loan, the scheduled
combined payment of principal
and interest,
and taxes and insurance,
if applicable,
payable by a Mortgagor under the related
Mortgage Note or
under a bankruptcy or forbearance plan on each Due Date.
Mortgage:
The
mortgage,
deed of trust or other
instrument
securing
a Mortgage
Note,
which
creates a first lien on an estate in fee simple in real property
securing the Mortgage Note.
Mortgage
Interest
Rate:
With
respect to each
Mortgage
Loan,
the annual rate that
interest
accrues on such Mortgage Loan from time to time in accordance with
the provisions of the related Mortgage Note.
Mortgage Loan:
Each mortgage loan or Cooperative
Loan
identified on the Mortgage Loan Schedule
attached hereto as Exhibit 10.
Mortgage Loan
Schedule:
The schedule of Mortgage
Loans to be delivered by the Depositor to the
Custodian and the Servicer
(with a copy to the Indenture
Trustee) two (2) Business Days prior to the Closing Date
and to be annexed
hereto as
Exhibit 10,
such schedule
setting forth the
following
information
(or such other
information as provided to the Custodian or the
Servicer), with respect to each Mortgage Loan:
(i)
the loan number of the Loan and the last name of the related
Mortgagor;
(ii)
the street address of the Mortgaged Property including city, state
and zip code;
(iii)
the original Mortgage Interest Rate;
(iv)
the original term of the related Mortgage Note;
(v)
the maturity date of the related Mortgage Note;
(vi)
the original Principal Balance;
(vii)
the first payment date;
(viii)
the Monthly Payment in effect as of the Cut-Off Date;
(ix)
the date of the last paid installment of interest;
(x)
the unpaid Principal Balance as of the close of business on the
Cut-Off Date;
(xi)
the Original Loan-to-Value ratio;
(xii)
the type of property and the Original Value of the Mortgaged
Property;
5
(xiii)
whether a primary mortgage insurance policy is in effect as of the
Cut-Off Date;
(xiv)
the nature of occupancy at origination;
(xv)
the first Adjustment Date;
(xvi)
the Gross Margin;
(xvii)
the Maximum Mortgage Interest Rate under the terms of the Mortgage
Note;
(xviii)
the Minimum Mortgage Interest Rate under the terms of the Mortgage
Note;
(xix)
the Periodic Rate Cap;
(xx)
the first Adjustment Date immediately following the Cut-off Date;
(xxi)
the Index;
(xxii)
[reserved];
(xxiii)
the Servicer;
(xxiv)
the Servicing Fee Rate;
(xxv)
the Custodian;
(xxvi)
the Mortgagor's first and last name;
(xxvii)
a code indicating whether the Mortgaged Property is owner-occupied;
(xxviii)
the original months to maturity;
(xxix)
the original date of the Mortgage
Loan and the remaining
months to maturity from the
Cut-off Date based on the original amortization schedule;
(xxx)
the Mortgage Interest Rate in effect immediately following the
Cut-off Date;
(xxxi)
the amount of the Monthly Payment at origination;
(xxxii)
the last Due Date on which a
Monthly
Payment
was
actually
applied
to the
unpaid
stated principal balance;
(xxxiii)
the
scheduled
principal
balance of the Mortgage Loan as of the close of business on
the Cut-off Date;
6
(xxxiv)
a code
indicating
the
purpose
of the loan
(i.e.,
purchase
financing,
rate/term
refinancing, cash-out refinancing);
(xxxv)
a code indicating the documentation style (i.e., full, stated or
limited);
(xxxvi)
a code
indicating
if the Mortgage Loan is subject to a Primary
Insurance
Policy or
LPMI Policy;
(xxxvii)
the Appraised Value of the Mortgaged Property;
(xxxviii)
the sale price of the Mortgaged Property, if applicable;
(xxxix)
a code indicating
whether the Mortgage Loan is subject to a prepayment
penalty,
the
term of such penalty and the amount of such penalty;
(xl)
the product type (e.g., 2/28, etc.); and
(xli)
the Mortgagor's debt to income ratio.
Mortgage Note: The note or other
evidence of the
indebtedness
of a Mortgagor with respect to a
Mortgage Loan.
Mortgaged
Property:
The real property
securing
repayment of the debt
evidenced by a Mortgage
Note or, with respect to a Cooperative Loan, the related
Cooperative shares and Proprietary Lease.
Mortgagor:
The obligor on a Mortgage Note,
the owner of the Mortgaged
Property and the grantor
or borrower
named in the related
Mortgage and such
grantor's or borrower's
successors in title to the Mortgaged
Property.
Officer's
Certificate:
A
certificate
signed by the Chairman of the Board or the Vice Chairman
of the Board or the
President or a Vice
President
and by the
Treasurer or the Secretary or one of the Assistant
Treasurers or Assistant Secretaries of the Person delivering such
certificate.
Original
Loan-to-Value
Ratio:
With respect to any Mortgage Loan as of any date of origination,
the
ratio on such date of the
original
principal
amount
of the
Mortgage
Loan to the
Appraised
Value of the
Mortgaged Property.
Original
Value:
With
respect
to any Loan
other
than a Loan
originated
for the
purpose of
refinancing an existing
mortgage debt, the lesser of (a) the
Appraised
Value (if any) of the Mortgaged
Property
at the time the Loan was
originated or (b) the
purchase
price paid for the Mortgaged
Property by the Mortgagor.
With respect to a Loan originated for the purpose of refinancing
existing
mortgage debt, the Original Value shall
be equal to the lesser of (a) the
Appraised
Value of the Mortgaged
Property at the time the Loan was
originated
or (b) the appraised value at the time the refinanced mortgage debt
was incurred.
7
Periodic Rate Cap: With respect to each
adjustable-rate
Mortgage Loan and any
Adjustment
Date
therefor,
a number of
percentage
points per annum that is set forth in the
Mortgage
Loan
Schedule
and in the
related Mortgage Note,
which is the maximum amount by which the Mortgage
Interest Rate for such Mortgage Loan may
increase
(without
regard to the
Maximum
Mortgage
Interest
Rate) or
decrease
(without
regard to the Minimum
Mortgage
Interest Rate) on such Adjustment
Date from the Mortgage
Interest Rate in effect
immediately
prior to
such Adjustment Date.
Person:
Any
individual,
corporation,
partnership,
joint
venture,
association,
joint-stock
company,
trust,
limited liability
company,
unincorporated
organization,
government or any agency or political
subdivision thereof.
Pledge
Instruments:
With respect to each
Cooperative
Loan, the Stock Power, the Assignment of
Proprietary Lease and the Security Agreement.
Primary Insurance
Policy: A policy of primary mortgage
guaranty
insurance issued by an insurer
that meets the requirements of FNMA and FHLMC.
Proprietary
Lease:
The lease on a Cooperative
Unit
evidencing the possessory
interest of the
owner of the Cooperative Shares in such Cooperative Unit.
Recognition
Agreement:
An agreement among a Cooperative
Corporation,
a lender and a Mortgagor
with respect to a Cooperative
Loan whereby such parties
(i) acknowledge
that such lender may make, or intends to
make, such Cooperative Loan and (ii) make certain agreements with
respect to such Cooperative Loan.
Refinanced
Mortgage
Loan:
A Mortgage
Loan the proceeds of which were not used to purchase the
related Mortgaged Property.
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.
REO Property:
A Mortgaged
Property related to a Mortgage Loan, title to which has been
acquired
by the Servicer on behalf of the Trust through foreclosure, deed in
lieu of foreclosure or otherwise.
Requesting Party:
Shall have the meaning set forth in Section 25 herein.
Residential
Dwelling:
Any
one of the
following:
(i) a
one-family
dwelling,
(ii) a
two-to
four-family
dwelling,
(iii) a one-family dwelling unit in a FNMA eligible condominium
project,
(iv) a one-family
dwelling
in a
planned
unit
development
or (v) a
co-operative,
none of which is a
commercial
property
or a
mixed-use property.
8
Security
Agreement:
With respect to a Cooperative
Loan,
the agreement or mortgage
creating a
security interest in favor of the originator of the Cooperative
Loan in the related Cooperative Shares.
Seller:
As defined in the recitals hereto.
Servicer:
PHH Mortgage Corporation or any successor in interest or assigns.
Servicing
Fee Rate:
With
respect to each Loan,
the related
per annum rate for such
Mortgage
Loan, as set forth on the Loan Schedule.
Stock Power:
With respect to a Cooperative
Loan, an assignment of the stock
certificate
or an
assignment of the Cooperative Shares issued by the Cooperative
Corporation.
Subcontractor:
Any
vendor,
subcontractor
or
other
Person
that is not
responsible
for the
overall
servicing
(as
"servicing"
is commonly
understood by
participants
in the
mortgage-backed
securities
market) of Mortgage Loans but performs one or more discrete
functions
identified in Item 1122(d) of Regulation AB
with respect to Mortgage Loans under the direction or authority of
the Custodian.
Substitute Mortgage Loan: As defined on Exhibit 11 hereto.
Trust:
As defined in the recitals hereto.
Trust
Receipt
and
Initial
Certification:
A Trust
receipt
and
certification,
in the
form
annexed hereto as Exhibit 1,
which Trust Receipt and Initial
Certification is delivered to the Indenture
Trustee
by the Custodian pursuant to the requirements of Section 3 below.
Section 2.
Delivery of Custodial Files.
With respect to each Mortgage Loan
identified in the Mortgage Loan
Schedule,
the Depositor has
delivered
and released,
or will cause to be delivered
and released,
to the Custodian on or prior to the Closing
Date the documents or instruments described in Schedule B-1 of the
Purchase and Servicing Agreement.
From
time to
time,
the
Servicer
shall
forward
or cause to be
forwarded
to the
Custodian
additional
original
documents,
or
additional
original
documents
evidencing
an
assumption,
modification,
consolidation
or
extension of a Mortgage
Loan.
All such
mortgage
documents
held by the
Custodian as to each
Mortgage Loan shall constitute the "Custodial File".
The
Custodian
agrees to execute and deliver to the
Depositor and the Issuer on or prior to the
Closing
Date
an
acknowledgment
of
receipt
of
the
original
Mortgage
Note
(with
any
exceptions
noted),
substantially in the form attached as Exhibit 13 hereto.
The Custodian
hereby agrees to its duties set forth in
Sections 2
and 3 of Exhibit 11
annexed
hereto with respect to Substitute Mortgage Loans.
9
If a Mortgage Note or Mortgage is required in connection
with a prepayment,
the Custodian shall
fax or send by
overnight
mail a copy of such
document
to the
Servicer
within
two (2)
Business
Days of such
Servicer's
request
therefor.
Neither the Custodian nor the Servicer shall be liable for such
Servicer's
failure
to collect prepayment charges for which it is unable to obtain the
requisite documents to review.
Section 3.
Custodian's
Receipt,
Examination and Certification of Mortgage Files; Initial
Trust Receipt Delivered by the Custodian.
Not later than the Closing
Date,
the Custodian
shall deliver to the Indenture
Trustee and the
Servicer
a Trust
Receipt
and
Initial
Certification,
wherein
the
Custodian
shall
state
that other than as
identified on the exception
report attached to such Trust Receipt and Initial
Certification,
as to each Mortgage
Loan:
(i) a
Mortgage Note is present and has been endorsed in accordance
with the
requirements
of Section 2 of
this Agreement;
(ii) that is not a Cooperative
Loan, each
intervening
endorsement or intervening
assignment of
mortgage is present in accordance with the
requirements of this Agreement;
(iii) that is not a Cooperative
Loan,
an Assignment of Mortgage has been delivered in accordance with the
requirements
of this Agreement;
(iv) that is
a
Cooperative
Loan,
the
Cooperative
Shares
and
Stock
Power
have
been
delivered
in
accordance
with the
requirements
of this
Agreement;
(v) that
is a
Cooperative
Loan,
the
Proprietary
Lease
and
Assignment
of
Proprietary
Lease have been delivered in accordance with the
requirements of this Agreement;
and (vi) based upon
such examination of the Mortgage Note only, the information set
forth in items (i),
(ii),
(iii), (v), (vi), (vii)
and (xxvi) of the
definition of Mortgage
Loan Schedule
respecting
such
Mortgage Loan
accurately
reflects the
information
on the Mortgage Loan Schedule.
With respect to each Mortgage
Loan,
the Custodian
shall indicate on
the exception
report
attached to the Trust
Receipt and Initial
Certification
whether
(i) any of the documents
required to be delivered
pursuant to
Section 2
above are not present and
(ii) the
power of attorney
delivered
pursuant to Section 2 is not an original.
The
Custodian
makes
no
representations
as to
(i) the
validity,
legality,
enforceability,
recordability
or genuineness of any of the Custodial Files
identified on the Mortgage Loan Schedule,
or (ii) the
collectability,
insurability,
effectiveness
or suitability of any Mortgage Loan. The Custodian shall not
conduct
an independent
review of the Custodial
File other than as expressly
provided in this
Agreement.
In addition to
the foregoing,
the document
exception report
referenced
herein shall also be delivered to the Indenture Trustee
in an electronic form acceptable to the Indenture Trustee.
Section 4.
Obligations of the Custodian.
(a)
With respect to the Mortgage
Note,
the
Mortgage
and the
Assignment
of Mortgage and
other
documents
constituting
each Custodial File,
which either (i) are
delivered to the Custodian or (ii) come
into the possession of the Custodian,
the Custodian is the custodian for the Indenture
Trustee
exclusively.
The
Custodian shall hold all mortgage
documents
received by it constituting
the Custodial File for the exclusive use
and benefit of the Indenture
Trustee,
and shall make
disposition
thereof only in accordance with this Agreement
and the
instructions
furnished by the Indenture
Trustee.
The Custodian shall segregate and maintain
continuous
custody of all mortgage
documents
constituting
the
Custodial
File in secure and
fire-resistant
facilities in
10
accordance
with
customary
standards for such custody.
The Custodian
shall not be responsible to verify (i) the
validity,
legality,
enforceability,
sufficiency,
due
authorization
or
genuineness
of any
document
in each
Custodial
File
or of any of the
Mortgage
Loans
or
(ii) the
collectability,
insurability,
effectiveness
or
suitability
of any Mortgage
Loan.
The Custodian
shall not execute any
endorsements
on the Mortgage
Notes and
Assignments
of Mortgages
without the prior
written
consent of the
Indenture
Trustee,
except as otherwise set
forth in Section 2 of this
Agreement or as otherwise
agreed to in writing
between the Indenture
Trustee and the
Custodian.
(b)
On or
before
March 1st
of each
calendar
year
beginning
with
March 1,
2009,
the
Custodian
shall, at its own expense,
cause a firm of independent
public
accountants
(who may also render other
services to Custodian),
which is a member of the American
Institute of Certified Public
Accountants,
to furnish
to the Master
Servicer
and the
Depositor
a report to the effect
that such firm
attests to and reports on, the
assessment
made by such
asserting
party
pursuant to the
following
paragraph,
which
report
shall be made in
accordance with Rules 1-02(a)(3) and 2-02(g) of Regulation S-X
under the Exchange Act.
On or before March 1st of each calendar year,
beginning with March 1,
2009, the Custodian shall
deliver to the Master
Servicer,
a report
regarding
its
assessment of
compliance
with the servicing
criteria
identified in Exhibit 12
attached
hereto,
as of and for the fiscal year ending no later than
December 31 of the
year prior to the year of delivery of the report,
as required
under
Rules 13a-18
and 15d-18 of the Exchange Act
and Item 1122 of Regulation AB.
Each such report shall include (a) a statement of the party's
responsibility
for
assessing
compliance with the servicing
criteria
applicable to such party,
(b) a statement that such party used
the criteria
identified in Item 1122(d) of Regulation AB (§ 229.1122(d)) to
assess
compliance with the applicable
servicing
criteria,
(c) disclosure of any material instance of noncompliance
identified by such party, and (d) a
statement that a registered public accounting firm has issued an
attestation
report on such party's
assessment of
compliance
with the applicable
servicing
criteria,
which report shall be delivered by the Custodian as provided
in this Section 4.
The
Custodian
has not and shall not engage any
Subcontractor
which is
"participating
in the
servicing
function " within the
meaning of
Item 1122
of
Regulation AB,
unless
such
Subcontractor
provides,
beginning
March 1,
2008,
a report
and a
statement
of a
registered
public
accounting
firm
certifying
its
compliance with the applicable servicing criteria in Item 1122(d)
of Regulation AB.
The Custodian agrees to indemnify the Depositor,
the Indenture Trustee,
the Master Servicer and
the Securities
Administrator
and each of their
respective
directors,
officers and employees and the Trust fund
(each an
"Indemnified
Party") and hold each
harmless
from and against any losses,
damages,
penalties,
fines,
forfeitures,
legal fees,
expenses and related costs,
judgments,
and any other costs, fees and expenses that any
of them
may
sustain
directly
relating
to
(a) any
breach
by the
Custodian
of its
obligations
under
this
Section 4(b),
including particularly its obligations to provide any assessment of
compliance or attestation report
required to be included in any 1934 Act report,
(b) any
misstatement
or omission in any assessment of compliance
or attestation report provided by the Custodian or any
Subcontractor,
or (c) the negligence,
bad faith or willful
misconduct of the Custodian in connection
with its performance
under this
Section 4(b).
If the
indemnification
11
provided for herein is unavailable
or
insufficient
to hold harmless any
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.
This
indemnification shall survive the termination of this Agreement or
the termination of the Custodian.
If so
requested
by the
Master
Servicer,
Securities
Administrator,
Depositor
or
Indenture
Trustee,
on any date following the Closing Date, the Custodian
shall within (5) five Business Days following such
request,
confirm in
accuracy
of the
representations
and
warranties
set forth in
Section 28
or, if any such
representation
and
warranty is not
accurate as of the date of such
confirmation,
provide
reasonably
adequate
disclosure of the pertinent
facts, in writing,
to the requesting
party. Any such request shall not be given more
than once each calendar quarter,
unless such requesting party has a reasonable basis for a
determination
that any
of the representations and warranties may not be accurate.
For so long as the Notes are outstanding,
for the purpose of satisfying the Depositor's,
Master
Servicer's and Securities
Administrator's
reporting
obligations under the Exchange Act with respect to any class
of Notes,
the Custodian shall
(a) notify the Depositor,
Master Servicer and Securities
Administrator in writing
of any material
litigation or
governmental
proceedings
pending
against the Custodian that would be material to
the holder of a Note, and
(b) provide to the Depositor,
Master Servicer and Securities
Administrator,
a written
description of such
proceedings.
Any notices and
descriptions
required
under this paragraph
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 Depositor,
Master
Servicer or Securities
Administrator
files each Report on Form 10-D or Form 10-K with respect to the
Notes,
the Custodian will be deemed
to represent that any
information
previously
provided under this
Section 4,
if any, is materially
correct and
does not have any material omissions unless the Custodian has
provided an update to such information.
Section 5.
Final Trust Receipt.
Within one hundred
twenty
(120) days after the Closing
Date the
Custodian
shall
review with
respect to each
Custodial
File that the Depositor has delivered and released to the
Custodian,
the documents or
instruments described in Schedule 1 attached hereto.
Within one hundred
twenty
(120) days after the Closing
Date,
the
Custodian,
following
such
review, shall deliver to the Indenture Trustee (with a copy to the
Depositor, the Master Servicer, the Servicer and
the
Seller),
a Final Trust
Receipt to the effect that,
as to each
Mortgage
Loan listed on the
Mortgage
Loan
Schedule (other than any Mortgage Loan (a) paid in full, or (b)
specifically identified on such Final Trust Receipt
as not covered by such Final Trust Receipt), (i) all documents
required to be delivered to it pursuant to Section 5
of this Agreement 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) based on its
examination and only as to the foregoing
documents,
the
information set forth in items (i), (ii),
(iii),
(v), (vi), (vii), and
(xxvi) of the definition of Mortgage Loan
Schedule respecting such Mortgage Loan accurately reflects the
information on the Mortgage Loan
12
Schedule;
and
(v) each
Mortgage
Note has been
endorsed as provided in
Section 5
of this
Agreement
and each
Mortgage has been assigned in accordance with Section 5 of this
Agreement.
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 Master
Servicer,
the
Depositor,
the
Servicer
and the
Indenture
Trustee.
The
Custodian
shall not be
responsible
or
liable
for
completing or correcting any missing,
incomplete or inconsistent documents,
causing any other person or entity to
do so or notifying any person that any such action has or has not
been taken.
Section 7.
Release for Servicing.
From time to time and as
appropriate
for the
foreclosure
or
servicing of any of the Mortgage
Loans, the Custodian shall,
upon receipt of two copies (or electronic
receipt) from the Servicer of a request for
release of Custodial
File and receipt in the form similar to the form annexed
hereto as Exhibit 3,
or such other
form in electronic format acceptable to the Custodian,
within five (5) Business Days release to the Servicer,
the
related
Custodial
File.
All Custodial
Files so released to the Servicer
shall be held in trust by the Servicer
for the sole benefit of the Indenture
Trustee in accordance with the terms of this
Agreement.
The Servicer shall
return to the Custodian the Custodial File when the Servicer's
need therefor in connection
with such
foreclosure
or servicing no longer
exists,
unless the Mortgage
Loan shall be
liquidated
in which case,
upon receipt of an
additional
request for release of Custodial File and receipt
certifying
such
liquidation in the form similar to
the form annexed hereto as Exhibit 3,
or such other form in electronic
format
acceptable to the
Custodian,
the
request and receipt
submitted
pursuant to the first sentence of this Section 7 shall be released
by the Custodian
to the
Servicer.
In
connection
with the
Servicer's
processing
of a payoff
request for a Mortgage
Loan,
if
required by the Servicer in order to calculate the prepayment
penalties,
if any, to be charged in connection with
such payoff,
the
Servicer
may submit a request for release of Custodial
File and receipt in the form similar to
the form annexed hereto as Exhibit 3,
with item (5)
checked (or some other form in electronic
format
acceptable
to the
Custodian,
indicating
the same
information)
and stating that the
Servicer
requests a copy of the note
rider or other document in the Custodial File
describing
the
prepayment
penalt
