**Exhibit10.26**

 

 

AMENDED ANDRESTATED

CUSTODIALAGREEMENT

 

Among

 

MERRILL LYNCHMORTGAGE CAPITAL INC.

 

as Buyer

 

and

 

MORTGAGEIT, INC.,as Seller

 

and

 

MORTGAGEIT,HOLDINGS, INC.,as Seller

 

DEUTSCHE BANKNATIONAL TRUST COMPANY,

 

as Custodian

 

Dated as of August 4,2004

 

 

----

 

**TABLE OFCONTENTS**

 
| Section 1.  | Definitions.                                                             |   |
|------------------|--------------------------------------------------------------------------|--------|
|             |                                                                     |   |
| Section 2.  | Deposit of Mortgage Loans;  Effecting a Transaction.                     |   |
|             |                                                                     |   |
| Section 3.  | Mortgage Loan  Schedule or Exception Report.                        |   |
|             |                                                                     |   |
| Section 4.  | Obligations of the  Custodian.                                           |   |
|             |                                                                     |   |
| Section 5.  | Additional Purchased  Mortgage Loans.                                    |   |
|             |                                                                     |   |
| Section 6.  | Future Defects.                                                          |   |
|             |                                                                     |   |
| Section 7.  | Release for Servicing.                                                   |   |
|             |                                                                     |   |
| Section 8.  | Limitation on Release.                                                   |   |
|             |                                                                     |   |
| Section 9.  | Release for Payment.                                                     |   |
|             |                                                                     |   |
| Section 10. | Covenants of the Seller.                                                 |   |
|             |                                                                     |   |
| Section 11. | Repurchase Date.                                                         |   |
|             |                                                                     |   |
| Section 12. | Transfer of Purchased  Mortgage Loans Upon Termination of a Transaction. |   |
|             |                                                                     |   |
| Section 13. | Shipment of Documents.                                                   |   |
|             |                                                                     |   |
| Section 14. | Examination and Copies of  Mortgage Files.                               |   |
|             |                                                                     |   |
| Section 15. | Insurance of the  Custodian.                                             |   |
|             |                                                                     |   |
| Section 16. | Periodic Statements.                                                     |   |
|             |                                                                     |   |
| Section 17. | Fees and Expenses of the  Custodian.                                     |   |
|             |                                                                     |   |
| Section 18. | Custodian Representations.                                               |   |
|             |                                                                     |   |
| Section 19. | No Adverse Interest of the  Custodian.                                   |   |
|             |                                                                     |   |
| Section 20. | Concerning the Custodian.                                                |   |
|             |                                                                     |   |
| Section 21. | Indemnification.                                                         |   |
|             |                                                                     |   |
| Section 22. | Merger or Consolidation of  Custodian.                                   |   |

 

i

----

 
| Section 23. | Removal of the Custodian  With Respect to Some or All of the Purchased Mortgage Loans. |   |
|------------------|----------------------------------------------------------------------------------------|--------|
|             |                                                                                   |   |
| Section 24. | Termination by the  Custodian.                                                         |   |
|             |                                                                                   |   |
| Section 25. | Successors and Assigns.                                                                |   |
|             |                                                                                   |   |
| Section 26. | Authorized  Representatives.                                                           |   |
|             |                                                                                   |   |
| Section 27. | Notices.                                                                               |   |
|             |                                                                                   |   |
| Section 28. | Reproduction of Documents.                                                             |   |
|             |                                                                                   |   |
| Section 29. | Amendments; Entire  Agreement.                                                         |   |
|             |                                                                                   |   |
| Section 30. | Entire Agreement;  Severability.                                                       |   |
|             |                                                                                   |   |
| Section 31. | Governing Law;  Counterparts.                                                          |   |
|             |                                                                                   |   |
| Section 32. | Submission to  Jurisdiction.                                                           |   |
|             |                                                                                   |   |
| EXHIBITS         |                                                                                   |   |
|             |                                                                                   |   |
| EXHIBIT 1        | Mortgage File                                                                          |   |
| EXHIBIT 2        | Form of Trust Receipt                                                                  |   |
| EXHIBIT 3        | Form of  Request for Release of Documents and Receipt                                  |   |
| EXHIBIT 4        | Authorized  Representatives of the Custodian                                           |   |
| EXHIBIT 5        | Authorized  Representatives of the Seller                                              |   |
| EXHIBIT 6        | Authorized  Representatives of the Buyer                                               |   |
| EXHIBIT 7        | Form of  Mortgage Loan Schedule                                                        |   |
| EXHIBIT 8        | Form of  Repurchase Release                                                            |   |
| EXHIBIT 9        | Form of Lost  Note Affidavit                                                           |   |
| EXHIBIT 10       | Form of  Wet-Ink Trust Receipt                                                         |   |
| EXHIBIT 11       | Approved  Bailees                                                                      |   |
| EXHIBIT 12       | Approved  Takeout Investors                                                            |   |
| EXHIBIT 13       | Form of  Bailee Letter                                                                 |   |
| EXHIBIT 14       | Form of  Bailee Violation Letter                                                       |   |
| EXHIBIT 15       | Form of  Settlement Account Control Agreement                                          |   |

 

ii

----

 

This AMENDED AND RESTATEDCUSTODIAL AGREEMENT, dated as of August 4, 2004, among Merrill LynchMortgage Capital Inc. (“MLMCI” and the “Buyer”), MortgageIT,Inc., a New York corporation (“MortgageIT” and a “Seller”),MortgageIT Holdings, Inc., a Maryland corporation (“Holdings” and a “Seller”,and collectively with MortgageIT, the “Sellers”) and Deutsche BankNational Trust Company, as Custodian (the “Custodian”).

 

Merrill Lynch CommercialFinance Corp. (“MLCFC”), MortgageIT and the Custodian previously enteredinto a Custodial Agreement, dated June 20, 2003, (the “ExistingCustodial Agreement”) and MLCFC subsequently assigned its rights hereunderto MLMCI.

 

The Buyer, the Sellers andthe Custodian have requested that the Existing Custodial Agreement be amendedand restated on the terms and conditions set forth herein.

 

Accordingly, the partieshereby agree, in consideration of the mutual promises and mutual obligationsset forth herein, that the Custodial Agreement is hereby amended and restated asset forth herein.

 

W I T N E S S E T H:

 

WHEREAS, the Buyer andthe Sellers may, from time to time, enter into transactions (each, a “Transaction”)in which the Buyer shall purchase from the Sellers certain Mortgage Loans, witha simultaneous agreement by the Sellers to repurchase such Purchased MortgageLoans as provided in that certain Amended and Restated Master RepurchaseAgreement dated as of August 4, 2004 between the Sellers and the Buyer(the “RepurchaseAgreement”); and

 

WHEREAS, the Buyer has requestedthe Custodian to act as custodian on behalf of the Buyer for purposes ofholding the Purchased Mortgage Loans purchased by Buyer from the Sellerspursuant to the Repurchase Agreement; and

 

WHEREAS, the Custodian isa national banking association, is otherwise authorized to act as the Custodianpursuant to this Agreement, and has agreed to act as custodian/bailee for hirefor the Buyer, all as more particularly set forth herein; and

 

WHEREAS, the Sellersshall from time to time deliver Purchased Mortgage Loans to the Custodian thatare subject to a Transaction, and has agreed to deliver or cause to bedelivered to the Custodian certain documents with respect to the PurchasedMortgage Loans subject to each Transaction in accordance with the terms and conditionshereof;

 

NOW, THEREFORE, inconsideration of the mutual undertakings herein expressed, the parties heretohereby agree as follows:

 

----

 

Section 1.                                            Definitions.

 

Capitalized terms usedbut not defined herein shall have the meanings assigned to them in theRepurchase Agreement.

 

“Additional Purchased Mortgage Loans”shall have the meaning set forth in Section 5 hereof.

 

“Agency” shallmean Freddie Mac, Fannie Mae or GNMA, as applicable.

 

“Agreement” shall mean this CustodialAgreement and all amendments and attachments hereto and supplements hereof.

 

“AnticipatedSettlement Date” shall mean the anticipated settlement date for any TakeoutCommitment.

 

“Approved Bailee”shall mean an Approved Takeout Investor or an Approved Bailee listed on Exhibit11 hereto.

 

“Approved TakeoutInvestor” shall mean (i) any Agency, (ii) any institution listed on Exhibit12 which has made a Takeout Commitment and has been approved by Buyer or(iii) any other institution which has otherwise been approved in writing by Buyer.

 

“Assignment of LeaseAgreement” shall mean the specific agreement creating a first lien on andpledge of the Co-op Shares and the appurtenant Proprietary Lease securing theCo-op Loan.

 

“Assignment of Mortgage” shall mean anassignment of the Mortgage, notice of transfer or equivalent instrument inrecordable form sufficient under the laws of the jurisdiction wherein therelated Mortgaged Property is located to reflect the transfer of the Mortgageto the party indicated therein.

 

“Assignment of ProprietaryLease” shall mean, with respect to a Co-op Loan, an assignment of theProprietary Lease sufficient under the laws of the jurisdiction wherein therelated Co-op Unit is located to reflect the assignment of such ProprietaryLease.”

 

“Authorized Representative” shall havethe meaning set forth in Section 26 hereof.

 

“Bailee Letter”shall mean a master bailee letter, in the form of Exhibit 13, for use byCustodian in connection with the delivery of a Mortgage File as contemplated inSection 9 hereof.

 

“Bailee ViolationLetter” shall mean a letter in the form of Exhibit 14 hereto.

 

“Business Day” shall mean any dayexcluding (i) Saturday, Sunday or (ii) any day on which banks locatedin the States of New York or California are authorized or permitted to closefor business or (iii) any day on which the New York Stock Exchange isclosed.

 

2

----

 

“Buyer” shall mean Merrill LynchMortgage Capital Inc. or its successor in interest or assigns.

 

“Committed MortgageLoan” shall mean any Mortgage Loan which is the subject of a TakeoutCommitment with an Approved Takeout Investor.

 

“Co-op Corporation”shall mean, with respect to any Co-op Loan, the cooperative apartmentcorporation that holds legal title to the related Co-op Project and grantsoccupancy rights to units therein to stockholders through Proprietary Leases orsimilar arrangements.

 

“Co-op Lien Search”shall mean a search for (a) federal tax liens, mechanics’ liens, lis pendens,judgments of record or otherwise against (i) the Co-op Corporation and (ii) theseller of the Co-op Unit, (b) filings of Financing Statements and (c) the deedof the Co-op Project into the Co-op Corporation.

 

“Co-op Loan” shallmean a Mortgage Loan secured by the pledge of stock allocated to a dwellingunit in a residential cooperative housing corporation and collateral assignmentof the related Proprietary Lease.

 

“Co-op Project”shall mean, with respect to any Co-op Loan, all real property and improvementsthereto and rights therein and thereto owned by a Co-op Corporation includingwithout limitation the land, separate dwelling units and all common elements.

 

“Co-op Shares”shall mean, with respect to any Co-op Loan, the shares of stock issued by aCo-op Corporation and allocated to a Co-op Unit and represented by a stockcertificates.

 

“Co-op Unit” shallmean, with respect to any Co-op Loan, a specific unit in a Co-op Project.

 

“Custodian” shall mean Deutsche BankNational Trust Company, or any successor in interest or assigns, or any successorto the Custodian under this Agreement as herein provided.

 

“Electronic Agent” shall mean MERSCORP,Inc., or its successor in interest or assigns.

 

“Estoppel Letter”shall mean a document executed by the Co-op Corporation certifying, withrespect to a Co-op Unit, (i) the appurtenant Proprietary Lease will be in fullforce and effect as of the date of issuance thereof, (ii) the related StockCertificate was registered in the Mortgagor’s name and the Co-op Corporationhas not been notified of any lien upon, pledge of, levy of execution on ordisposition of such Stock Certificate, and (iii) the Mortgagor is not indefault under the appurtenant Proprietary Lease and all charges due the Co-opCorporation have been paid.

 

“Event of Default” shall mean any eventof default under the Repurchase Agreement or any confirmation thereunder.

 

“Fannie Mae” shallmean Fannie Mae, and any successor thereto.

 

3

----

 

“Financing Statement”shall mean a financing statement in the form of a UCC-1 filed pursuant to theUniform Commercial Code to perfect a security interest in the Co-op Shares andPledge Instruments.

 

“Freddie Mac”shall mean Freddie Mac, and any successor thereto.

 

“GNMA” shall meanthe Government National Mortgage Association, and any successor thereto.

 

“Indemnitee” shall have the meaning setforth in Section 21(a) hereof.

 

“Last Endorsee” shall have the meaningset forth in Section 3 hereof.

 

“MERS” shall mean Mortgage ElectronicRegistration Systems, Inc., or its successors or assigns.

 

“MERS System” shall mean the ElectronicAgent’s mortgage electronic registry system.

 

“Mortgage” shall mean the mortgage,deed of trust or other instrument securing a Mortgage Note, which creates afirst or second lien on the Mortgaged Property described therein.

 

“Mortgage File”shall have the meaning set forth in Exhibit 1 and Exhibit 1-Aattached hereto.

 

“Mortgage Loan” shall mean anyresidential real estate secured loan, including, without limitation: (i) apromissory note, any reformation thereof and related deed of trust (ormortgage) and security agreement; (ii) all guaranties and insurancepolicies, including, without limitation, all mortgage and title insurancepolicies and all fire and extended coverage insurance policies and rights ofthe Sellers to return premiums or payments with respect thereto; and(iii) all right, title and interest of the Sellers in the property coveredby such deed of trust (or mortgage).

 

“Mortgage Loan Schedule” shall mean aschedule in written and computer readable formats of Purchased MortgageLoans, containing the information set forth in Exhibit 7 hereto andotherwise acceptable to the Buyer.

 

“Mortgage Loan Schedule and Exception Report”shall mean a list of Purchased Mortgage Loans delivered by the Custodian to theBuyer, reflecting the Mortgage Loans held by the Custodian for the benefit ofthe Buyer, which includes codes indicating any exceptions with respect to eachMortgage Loan listed thereon.  EachMortgage Loan Schedule and Exception Report shall set forth (a) theMortgage Loans being purchased by the Buyer on any applicable Purchase Date aswell as the Mortgage Loans previously purchased by the Buyer and held by theCustodian hereunder, and (b) all exceptions with respect thereto, with anyupdates thereto from time to time last delivered.

 

“Mortgage Note” shall mean the note orother evidence of the indebtedness of a Mortgagor secured by a Mortgage, as thesame may be reformed or amended from time to time.

 

4

----

 

“Mortgaged Property” shall mean thereal property securing repayment of the debt evidenced by a Mortgage Note.

 

“Mortgagor” shall mean the obligor orobligors on a Mortgage Note, including any Person who has assumed or guaranteedthe obligations of the obligor thereunder.

 

“Notice of Bailment”shall mean a notice, in the form of Schedule 1 to the BaileeLetter, delivered by Custodian to an Approved Bailee in connection with eachdelivery to such Approved Bailee of the applicable portion of each SubmissionPackage.

 

“Notice of Default” shall mean writtennotice delivered by the Buyer to the Custodian and the Sellers stating that anEvent of Default has occurred.

 

“Officer’s Certificate”shall mean a certificate signed by a Responsible Officer of the Persondelivering such certificate and delivered as required by this CustodialAgreement.

 

“Person” shall mean any individual,corporation, limited liability company, partnership, joint venture,association, joint-stock company, trust, unincorporated organization,government or any agency or political subdivision thereof.

 

“Pledge Instruments”shall mean, with respect to each Co-op Loan, the Stock Power, the Assignment ofProprietary Lease, the assignment of the Mortgage Note and the acceptance ofassignment of lease agreement.

 

“Primary InsurancePolicy” shall mean a policy of primary mortgage guaranty insurance issuedby a Qualified Insurer, as required under the Repurchase Agreement with respectto certain Mortgage Loans.

 

“Proprietary Lease”shall mean the lease on a Co-op Unit evidencing the possessory interest of theowner of the Co-op Shares in such Co-op Unit.

 

“Purchase Date” shall mean with respectto each Purchased Mortgage Loan, the date on which such Purchased Mortgage Loanis purchased by the Buyer pursuant to the Repurchase Agreement.

 

“Purchased Mortgage Loan” shall meaneach Mortgage Loan, and/or any other evidence of ownership of a Mortgage Loanmutually agreed upon by the Buyer and the Sellers and identified to theCustodian transferred or caused to be transferred by the Sellers to the Buyeror its designee (including the Custodian) in a Transaction under the RepurchaseAgreement and any Additional Purchased Mortgage Loans delivered pursuant tothis Agreement.

 

“Qualified Insurer”shall mean a mortgage guaranty insurance company duly authorized and licensedwhere required by law to transact mortgage guaranty insurance business andacceptable under each Seller’s underwriting guidelines.

 

“Recognition Agreement”shall mean an agreement among a Co-op Corporation, a lender and a Mortgagorwith respect to a Co-op Loan whereby such parties (i) acknowledge that such

 

5

----

 

lender may make, orintends to make, such Co-op Loan, and (ii) make certain agreements with respectto such Co-op Loan.

 

“Repurchase Agreement” shall have themeaning set forth in the first paragraph of the recitals hereto.

 

“Repurchase Date” shall mean, withrespect to each Purchased Mortgage Loan, the date on which such PurchasedMortgage Loan is to be repurchased by each Seller pursuant to the RepurchaseAgreement.

 

“Repurchase Release” shall have themeaning set forth in Section 11 hereof.

 

“Request for Release” shall have themeaning set forth in Section 7 hereof.

 

“Responsible Officer”shall mean, with respect to the Custodian, any officer, including any managingdirector, principal, vice president, assistant vice president, assistanttreasurer, assistant secretary, trust officer or any other officer of theCustodian customarily performing functions similar to those performed by any ofthe above designated officers and having direct responsibility for theadministration of this Agreement, and also, with respect to a particularmatter, any other officer, to whom such matter is referred because of suchofficer’s knowledge and familiarity with the particular subject.

 

“Seller” shall mean each of MortgageITand Holdings or their successors in interest or assigns.

 

“Settlement Account”shall mean the settlement account, which shall be a segregated, non-interestbearing trust account, established pursuant to Section 5 hereof.

 

“Settlement AccountControl Agreement” shall mean the settlement account control agreement inthe form of Exhibit 15 hereto.

 

“Stock Certificate”shall mean, with respect to a Co-op Loan, the certificates evidencing ownershipof the Co-op Shares issued by the Co-op Corporation.

 

“Stock Power”shall mean, with respect to a Co-op Loan, an assignment of the StockCertificate or an assignment of the Co-op Shares issued by the Co-opCorporation.

 

“Takeout Commitment”shall mean a commitment of a Seller to sell one or more Mortgage Loans to anApproved Takeout Investor and the corresponding Approved Takeout Investor’scommitment back to a Seller to effectuate the foregoing.

 

“Transaction” shall have the meaningset forth in the first paragraph of the recitals hereto.

 

“Trust Receipt” shall mean a trustreceipt issued by the Custodian evidencing the Purchased Mortgage Loans itholds, in the form attached hereto as Exhibit 2 and delivered tothe Buyer by the Custodian in accordance with Section 2 hereof.

 

6

----

 

“Wet-Ink Delivery Date” shall mean withrespect to each Wet-Ink Mortgage Loan, no later than 5:00 p.m. (New York Citytime) on the seventh Business Day following the Purchase Date.

 

“Wet-Ink Mortgage Loan” shall mean aPurchased Mortgage Loan which is purchased by the Buyer simultaneously with theorigination thereof by a Seller.

 

“Wet-Ink Trust Receipt”shall mean a trust receipt issued by Custodian evidencing Purchased MortgageLoans which are Wet-Ink Mortgage Loans, substantially in the form attachedhereto as Exhibit 10, and delivered to Buyer by Custodian inaccordance with Section 3 hereof.

 

“Written Instructions” shall meanwritten communications received by the Custodian from an AuthorizedRepresentative of the Buyer or the Sellers, including communications receivedby facsimile, or other telecommunications device capable of transmitting orcreating a written record.

 

Section 2.                                            Depositof Mortgage Loans; Effecting a Transaction.

 

(a)                                  Withrespect to each Purchased Mortgage Loan (other than a Wet-Ink Mortgage Loan),no later than 3:00 p.m. (New York City time) one Business Day prior to eachPurchase Date, each Seller shall deliver or cause to be delivered to theCustodian (i) the Mortgage Files with respect to the related PurchasedMortgage Loans and (ii) the related Mortgage Loan Schedule.  With respect to each Wet-Ink Mortgage Loan,no later than 12 noon (New York City time) on the related Purchase Date, eachSeller shall deliver or cause to be delivered to the Custodian the relatedMortgage Loan Schedule listing the Wet-Ink Mortgage Loans.  On the Wet-Ink Delivery Date, each Sellershall deliver or cause to be delivered to the Custodian (i) the MortgageFiles with respect to the related Wet-Ink Mortgage Loans and (ii) therelated Mortgage Loan Schedule.  No morethan 200 Purchased Mortgage Loans shall be delivered to the Custodian on anyone Business Day.

 

The Custodian shalldeliver to the Buyer via electronic mail (with the original to follow), nolater than 4:00 p.m. (New York City time) on the Purchase Date, a MortgageLoan Schedule and Exception Report of all Mortgage Loans then held or tobe held by the Custodian for the Buyer’s benefit (including Mortgage Loans tobe purchased on such Purchase Date) in an electronic format acceptable to theBuyer, which schedule shall include all information included in theMortgage Loan Schedule and such additional information as the Buyer andthe Custodian may agree.

 

(b)                                 Oneach Purchase Date with respect to Purchased Mortgage Loans other than Wet-InkMortgage Loans, upon receipt of the Mortgage Loan Schedule and ExceptionReport from the Custodian, in form and substance acceptable to the Buyer, theBuyer shall transfer to each Seller immediately available funds in an amountequal to the related Purchase Price. With respect to Wet-Ink Mortgage Loans, upon receipt of the Wet-InkTrust Receipt and Mortgage Loan Schedule from the Custodian, in form andsubstance acceptable to the Buyer, the Buyer shall transfer to each Sellerimmediately available funds in an amount equal to the related Purchase Price.

 

7

----

 

(c)                                  Onand after the Purchase Date for any Mortgage Loan, until the related RepurchaseDate, as such date may be extended by Written Instructions signed by both theBuyer and a Seller and delivered to the Custodian, or until the Custodian shallreceive a Notice of Default, the Custodian shall hold the Purchased MortgageLoans related to such Transaction as the custodian and bailee for hire for theexclusive benefit of the Buyer and shall not act upon instructions of a Sellerto deliver the Purchased Mortgage Loans other than as expressly provided inthis Agreement.

 

(d)                                 Custodianshall deliver to Buyer, no later than 4:00 p.m. (New York City time) on therelated Purchase Date, electronically followed by overnight courier a MortgageLoan Schedule and Exception Report having appended thereto aschedule of all Mortgage Loans with respect to which Custodian hascompleted the procedures set forth in Section 3 hereof and certify that itis holding each related Mortgage File for the benefit of Buyer in accordancewith the terms hereof (provided that the Custodian has timely received theitems pursuant to Section 2(a) herein).

 

(e)                                  Inaddition to the foregoing, on the initial Purchase Date, the Custodian shalldeliver to the Buyer, no later than 4:00 p.m. (New York City time), a TrustReceipt with a Mortgage Loan Schedule and Exception Report attachedthereto (provided that the Custodian has timely received the items pursuant toSection 2(a) herein).  Each MortgageLoan Schedule and Exception Report delivered by the Custodian to the Buyershall supersede and cancel the Mortgage Loan Schedule and Exception Reportpreviously delivered by the Custodian to the Buyer hereunder, and shall replacethe then existing Mortgage Loan Schedule and Exception Report to beattached to the Trust Receipt.  Notwithstandinganything to the contrary set forth herein, in the event that the Mortgage LoanSchedule and Exception Report attached to the Trust Receipt is differentfrom the most recently delivered Mortgage Loan Schedule and ExceptionReport, then the most recently delivered Mortgage Loan Schedule andException Report shall control and be binding upon the parties thereto.

 

Section 3.                                            MortgageLoan Schedule or Exception Report.

 

No later than 4:00 p.m.(New York City time) on the Purchase Date (provided that the Custodian hastimely received the items required pursuant to Section 2(a) herein), orwith respect to Wet-Ink Mortgage Loans, by 5:00 p.m. (New York City time) onthe Business Day following the Wet-Ink Delivery Date, the Custodian shall issueand deliver to the Buyer via facsimile a Mortgage Loan Schedule andException Report relating to the Purchased Mortgage Loans to the effect thatwith respect to each such Purchased Mortgage Loan, except as noted in anyattached exception report, (i) all of the documents in paragraphs (a),(c), (e), (f), (g), and, to the extent provided, (b), (d), and (h) on Exhibit 1attached hereto are in its possession, (ii) all of the documents in paragraphs(a), (b), (c), (d), (e), (f), (g), (h) and, to the extent provided, (i) and (j)on Exhibit 1-A attached hereto are in its possession(iii) such documents have been reviewed by it and appear regular on theirface and relate to such Mortgage Loan; (iv) based on its examination andonly as to the foregoing documents, the information set forth in the MortgageLoan Schedule respecting such Mortgage Loan accurately reflects theinformation contained in the documents in the Mortgage File as to (A) thename of the mortgagor, (B) the address of the Mortgaged Property,(C) the interest rate on the Mortgage Note, (D) the originalprincipal amount of the Mortgage Note, and (E) the maturity date of theMortgage Note; (v) the Mortgage

 

8

----

 

Note and the Mortgage,each bears an original signature or signatures purporting to be the signatureor signatures of the person or persons named as the maker and mortgagor orgrantor; or, in the case of certified copies of the Mortgage, if any, suchcopies bear a reproduction of such signature or signatures; (vi) allsignatures on the Mortgage properly relate to the Mortgage Note, as applicable,and the Custodian has examined the Mortgage for the completions of any requirednotarization and has verified that any rider or addendum properly relates to theMortgage and that the signatures on any rider or addendum match the signatureson the Mortgage; (vii) the original principal amount of the indebtednesssecured by the Mortgage is identical to the original principal amount of theMortgage Note; (viii) if the Mortgage Note does not name the Seller as theholder or payee, the Mortgage Note bears original endorsements that completethe chain of ownership from the original holder or payee to the last endorsee(the “Last Endorsee”);(ix) if the Mortgage does not name the Seller or MERS as the mortgagee orbeneficiary, the original of the Assignment of Mortgage from the namedmortgagee or beneficiary bears the original signature purporting to be thesignature of the named mortgagee or beneficiary (including any subsequentassignors) or in the case of copies certified by the Seller, such copies bear areproduction of such signature or signatures and that the Assignment ofMortgage and any intervening assignments of mortgage complete the chain oftitle from the originator to the Last Endorsee; (x) the Mortgagor name onthe Assignment of Mortgage agrees with the related Mortgage Loan Schedule;(xi) each Mortgage Note in its possession has been endorsed as provided inExhibit 1 and Exhibit 1-A hereto, as applicable; and (xii) eachAssignment of Mortgage, Assignment of Lease Agreement and Assignment ofProprietary Lease have been executed as provided in Exhibit 1 and Exhibit1-A hereto, as applicable.

 

With respect to eachWet-Ink Mortgage Loan, on or prior to 4:00 p.m. (New York City time) on therelated Purchase Date, the Custodian shall issue to Buyer a Wet-Ink TrustReceipt certifying that the Custodian has received the Mortgage LoanSchedule identifying such Wet-Ink Mortgage Loans as Purchased MortgageLoans.

 

With respect to anymodifications or revisions occurring after the Purchase Date or the relatedWet-Ink Delivery Date with respect to Wet-Ink Mortgage Loans, not later thanthe Business Day following each Purchase Date, the Custodian shall deliver tothe Buyer a revised Mortgage Loan Schedule and Exception Report relatingto the Purchased Mortgage Loans.

 

Each Seller shall besolely responsible for providing each and every document required for eachMortgage File to the Custodian in a timely manner and for completing orcorrecting any missing, incomplete or inconsistent documents, and the Custodianshall not be responsible or liable for taking any such action, causing anySeller or any other person or entity to do so or notifying any Person (otherthan the Buyer to the extent specifically required in this Agreement) that anysuch action has or has not been taken. The Custodian makes no representations as to and shall not beresponsible to determine or verify (i) the validity, legality,enforceability, sufficiency, due authorization, filing of recording status orhistory, recordability, or genuineness of any document in any Mortgage File orany of the Purchased Mortgage Loans identified on the Mortgage LoanSchedule and Exception Report or (ii) the collectability, insurability,effectiveness or suitability of any such Purchased Mortgage Loan.  The Custodian shall not be required to reviewthe content (except as necessary to certify its presence or absence) of anydocument described in the preceding paragraph except as expressly requiredherein in order to deliver the Mortgage Loan Schedule and ExceptionReport.

 

9

----

 

Section 4.                                            Obligationsof the Custodian.

 

(a)                                  Withrespect to the Mortgage Files delivered to the Custodian or which come into thepossession of the Custodian, following the related transfer pursuant toSection 2(b) above until the interests of the Buyer have been releasedpursuant to this Agreement, the Custodian is the custodian for the Buyer,exclusively.  The Custodian shall,following the related transfer pursuant to Section 2(b) above until theinterests of the Buyer have been released pursuant to this Agreement, hold alldocuments received by it for the exclusive use and benefit of the Buyer andshall make disposition thereof only in accordance with this Agreement and theWritten Instructions furnished by the Buyer. The Custodian shall segregate and maintain continuous custody of theMortgage Files in secure and fire-resistant facilities in accordance with customarystandards for such custody.

 

(b)                                 TheCustodian shall promptly notify the Buyer if (i) any Seller fails to payany amount due to the Custodian under this Agreement or (ii) a ResponsibleOfficer of the Custodian has actual knowledge that any Mortgage, pledge, lien,security interest or other charge or encumbrance has been placed on theMortgage Files.

 

Section 5.                                            AdditionalPurchased Mortgage Loans.

 

(a)                                  EachSeller may, from time to time, deliver to the Custodian one or more additionalMortgage Loans (each an “AdditionalPurchased Mortgage Loans”) as an addition to the PurchasedMortgage Loans already held by the Custodian with respect to aTransaction.  In such event, such Sellershall deliver to the Custodian the Mortgage File for each Additional PurchasedMortgage Loans together with a Mortgage Loan Schedule, with a copy to theBuyer, stating that the Additional Purchased Mortgage Loan is being deliveredwith respect to an identified Transaction. It is expressly understood and agreed that the Custodian shall have noduty to perform any valuation of collateral and shall have no responsibility toascertain the adequacy of any Additional Purchased Mortgage Loans other thanundertaking a review of the related Mortgage File in accordance with Section 3hereof.

 

(b)                                 TheCustodian shall deliver to the Buyer no later than one Business Day afterreceipt of such Additional Purchased Mortgage Loan and Mortgage LoanSchedule from such Seller, a Mortgage Loan Schedule and ExceptionReport that reflects the delivery of each Additional Purchased Mortgage Loan; *provided* that in the event that the Custodian does notreceive the items required to be delivered pursuant to Section 5(a) aboveby no later than 3:00 p.m. (New York City time) on the Business Day prior tothe date of delivery, then the Custodian shall deliver such Mortgage LoanSchedule and Exception Report within one Business Day after the date ofdelivery.  In issuing such Mortgage LoanSchedule and Exception Report, the Custodian shall employ the same proceduresas set forth in Section 3 in reviewing the Mortgage Files.

 

Section 6.                                            FutureDefects.

 

During the term of thisAgreement, if the Custodian discovers any defect with respect to any MortgageFile, the Custodian shall give written specification of such defect to theSeller and the Buyer.  For purposes ofthis Section, “defect” shall mean a failure of a document to

 

10

----

 

correspond to theinformation set forth in the applicable Mortgage Loan Schedule or the absenceof a Mortgage File or any part thereof or any other document required pursuantto this Agreement.  Each Seller shall besolely responsible for completing or correcting any missing, incomplete orinconsistent documents, and the Custodian shall not be responsible or liablefor taking any such action, causing such Seller or any other person or entityto do so or notifying any Person that any such action has or has not beentaken.

 

Section 7.                                            Releasefor Servicing.

 

(a)                                  Fromtime to time and as appropriate for the servicing of any of the PurchasedMortgage Loans, the Custodian shall, upon receipt of a Request for Release ofDocuments and Receipt in the form of Exhibit 3 attached hereto (“Request for Release”),release or cause to be released to Sellers or the Sellers’ AuthorizedRepresentative the related Mortgage File or the documents of the relatedMortgage File set forth in such Request for Release.  Each Seller shall send a copy of any suchRequest for Release to the Buyer.  Anydocument released to a Seller or such Seller’s Authorized Representativepursuant to a Request for Release shall be returned to the Custodian no laterthan 10 Business Days from the date on such Request for Release, and theCustodian shall notify the Buyer of any failure by a Seller to so return anysuch document.

 

All Mortgage Files ordocuments from Mortgage Files released by the Custodian to a Seller or, uponsuch Seller’s Written Instructions, such Seller’s Authorized Representative,pursuant to this Section 7 shall be held by a Seller or such Seller’sAuthorized Representative, as applicable, in trust for the benefit of theBuyer.  Each Seller or such Seller’sAuthorized Representative, as applicable, shall return to the Custodian the MortgageFile or other such documents from Mortgage Files when the need therefor inconnection with such servicing no longer exists (but in any event no later than10 Business Days from the date on such Request for Release), unless theMortgage Loan shall be liquidated, in which case, a Seller or, if the MortgageFile or documents were released to such Seller’s Authorized Representative,such Seller’s Authorized Representative shall deliver to the Custodian anadditional Request for Release that has been acknowledged and agreed to by theBuyer certifying such liquidation.  Uponreceipt of the related Mortgage File or other such documents from a Seller, theCustodian shall return the related Request for Release to such Seller, with acopy to the Buyer, acknowledging receipt of such Mortgage File or other suchdocuments.

 

Section 8.                                            Limitationon Release.

 

The foregoingSection 7 shall be operative only to the extent that at any time theCustodian shall not have released to a Seller or such Seller’s AuthorizedRepresentative in total active Mortgage Files or documents (including thoserequested) pertaining to ten Mortgage Loans at the time being held by theCustodian under this Agreement.  If tenMortgage Loans or more have been, and remain released to a Seller at the timeof request, the Mortgage Note and/or Assignment of Mortgage or any additionalMortgage Files or documents requested to be released by such Seller or suchSeller’s Authorized Representative may be released only upon the writtenacknowledgment of the Request for Release by the Buyer.  The limitations of this paragraph shall notapply to the release of Mortgage Files to a Seller or, upon such Seller’sWritten Instructions, such Seller’s Authorized Representative, underSection 9 below.

 

11

----

 

Section 9.                                            Releasefor Payment; Takeout Provisions; Funding by a Takeout Investor.

 

(a)                                  Releasefor Payment.  Upon the payment infull, liquidation or repurchase of any Mortgage Loan, and upon receipt by theCustodian of a Request for Release certifying that all proceeds related to suchpayment in full, liquidation, or repurchase have been received (*provided* that a Seller shall have delivered a copy of suchRequest for Release to the Buyer and the Custodian shall not have received aNotice of Default from the Buyer), the Custodian shall promptly release therelated Mortgage File to such Seller or, upon such Seller’s WrittenInstructions, such Seller’s Authorized Representative.  After such release the Custodian shall amendthe Mortgage Loan Schedule and Exception Report to reflect the release ofthe applicable Mortgage Loan and shall deliver to the Buyer such amendedMortgage Loan Schedule and Exception Report.

 

(b)                                 TakeoutProvisions.  Funding by a TakeoutInvestor.

 

(i)                                EachSeller shall provide to Custodian a completed Request for Release (signed bysuch Seller and acknowledged by the Buyer) with respect to the relatedCommitted Mortgage Loans.  The MortgageFiles relating to the Committed Mortgage Loans included in a Request forRelease shall be sent for delivery by Custodian to the applicable ApprovedBailee specified by such Seller to Buyer and Custodian in writing by 5:00 p.m.(New York City time) on the Business Day following the Business Day on whichthe completed Request for Release is received by Custodian.  In the event that the Request for Release isnot received prior to 12 noon New York City time, Custodian shall usereasonable efforts to effect same day shipment of the related Mortgage Files,but in any event shall send such Mortgage Files on the following BusinessDay.  Such Mortgage Files shall be sentvia overnight courier at such Seller’s expense in accordance with such Seller’sdelivery instructions on the Request for Release and under cover of a fullycompleted Notice of Bailment prepared by Custodian in accordance with the termsof the Bailee Letter.  Custodian shallnot deliver any Mortgage File to any potential Approved Bailee unless suchApproved Bailee was identified by a Seller to Buyer and Custodian on thePurchase Date in the Mortgage Loan Schedule or as otherwise agreed to inwriting by Buyer (with a copy to Custodian) pursuant to the terms hereof.  Custodian shall deliver such documentsaccompanied by a Bailee Letter (to be prepared by a Seller and sent to Buyerand Custodian for execution) to the Approved Bailee.  The location of the Approved Bailee’s officespecified on the Notice of Bailment may only be changed with the prior writtenapproval of Buyer.

 

(ii)                             Atany time following the delivery of a Request for Release, in the eventCustodian becomes aware of any defect with respect to a related Mortgage Fileor the related forms, including the return of documents to Custodian from anApproved Bailee due to a defect in such documents, the Custodian shall giveprompt oral or electronic notice of such defect to Buyer, followed by a writtenspecification thereof to Buyer within one Business Day.  In addition, Custodian shall provide a BaileeViolation Letter to Buyer and the Approved Bailee in the event that Buyernotifies Custodian that any documents remain in the possession of an ApprovedBailee for thirty days and the related Mortgage Loans have not been purchasedby Approved Bailee prior to such date.

 

12

----

 

(iii)                          On theAnticipated Settlement Date and subject to Section 9(b)(v) hereof, unlessCustodian receives on or prior to such Anticipated Settlement Date a Notice ofDefault or Written Instructions from both Buyer and each Seller that theAnticipated Settlement Date has been extended, Buyer irrevocably instructsCustodian to release to the Approved Bailee the Purchased Mortgage Loans withrespect to such Transaction with a fully completed Notice of Bailment.  Notwithstanding anything to the contraryherein, in the event the Purchased Mortgage Loans are repurchased prior to therelated Anticipated Settlement Date pursuant to the Repurchase Agreement, Buyerirrevocably instructs Custodian, upon receipt of written notice thereof fromBuyer, to release to such Seller such Purchased Mortgage Loans as moreparticularly described in Section 9(a) above.

 

(iv)                         In theevent that an Approved Takeout Investor rejects a Mortgage Loan for purchasepursuant to a Takeout Commitment for any reason whatsoever, Custodian shallpromptly notify Buyer and each Seller upon receipt of the returned MortgageFile or notification from the Approved Takeout Investor (and Custodian shallprovide to Buyer the loan identification number).

 

(v)                            TheSellers shall establish and maintain a Settlement Account at the Custodian,titled “[Seller] in trust for Merrill Lynch Mortgage Capital Inc.”, and shallensure at all times that such Settlement Account is subject to a SettlementAccount Control Agreement.  Fundsdeposited in the Settlement Account may be transferred only in accordance withthe Settlement Account Control Agreement. Any funds deposited in the Settlement Account shall at all times befully insured to the full extent permitted under applicable law.  Funds deposited in the Settlement Accountshall be held uninvested.  Withoutlimiting the generality of the foregoing, each Seller shall cause theapplicable Takeout Investor to remit all amounts on account of the relatedMortgage Loans to the Settlement Account in accordance with the provisions ofthe related Takeout Commitment.

 

Section 10.                                      Covenantsof the Seller.

 

Each Seller covenants tothe Buyer as of the date that any Mortgage File documents are released to suchSeller or such Seller’s subservicer pursuant to a Request for Release that:

 

(a)                                  ifthe Request for Release has been submitted for the release of a PurchasedMortgage Loan that has been paid in full, all amounts received in connectionwith the payment in full of the Purchased Mortgage Loan have been credited tothe Buyer as provided in the Repurchase Agreement;

 

(b)                                 ifitem No. 1 has been checked on the Request for Release, the Repurchase Pricefor the applicable Purchased Mortgage Loan has been credited to the Buyer asprovided in the Repurchase Agreement; and

 

(c)                                  ifitem No. 4 has been checked on the Request for Release, all proceeds offoreclosure, insurance, condemnation or other liquidation have been finallyreceived and credited to the Buyer pursuant to the Repurchase Agreement.

 

13

----

 

Section 11.                                      RepurchaseDate.

 

Each Seller shall providethe Buyer and the Custodian with Written Instructions prior to 10:00 a.m. (NewYork City time) on each Repurchase Date on which such Seller intends to removePurchased Mortgage Loans from the repurchase facility governed by theRepurchase Agreement, which Written Instructions shall include aschedule of Purchased Mortgage Loans to be removed on such date (unlessall Purchased Mortgage Loans are to be removed, in which case the WrittenInstructions shall indicate this fact). The Buyer shall send a Repurchase Release in the form of Exhibit 8hereto (a “RepurchaseRelease”) to each Seller and the Custodian by 10:00 a.m.(New York City time) on the Repurchase Date listing the Purchased MortgageLoans to be released on such Repurchase Date. On the Repurchase Date for each Transaction, unless the Custodianreceives on the Business Day prior to such Repurchase Date a Notice of Defaultfrom the Buyer or Written Instructions from both the Buyer and each Seller thatthe Repurchase Date has been extended, the Buyer hereby irrevocably instructsthe Custodian to release to each Seller or its designee the Purchased MortgageLoans designated in such Repurchase Release upon receipt of notification by theCustodian from the Buyer that it has received the Repurchase Price.  The Buyer shall notify the Custodianimmediately upon confirmation that each Seller has transmitted the RepurchasePrice.

 

Section 12.                                      Transferof Purchased Mortgage Loans Upon Termination of a Transaction.

 

If the Custodian isfurnished with Written Instructions in the form of Exhibit 8attached hereto (i) from the Buyer and any Seller that a Transaction withrespect to the Repurchase Agreement has been terminated, or (ii) from theBuyer that an Event of Default under the Repurchase Agreement has occurred asto any or all of the Purchased Mortgage Loans, the Custodian shall release tosuch Persons as are designated in such Written Instructions the Mortgage Filesrelating to the Purchased Mortgage Loans that are no longer subject to theTransaction, and shall deliver to the Buyer an updated Mortgage LoanSchedule and Exception Report listing all of the Purchased Mortgage Loansstill subject to a Transaction.

 

Section 13.                                      Shipmentof Documents.

 

Written Instructions asto the method of shipment and shipper(s) that Custodian is directed to utilizein connection with transmission of Mortgage Files in the performance of theCustodian’s duties hereunder shall be delivered by each Seller or the Buyer toCustodian prior to any shipment of any Mortgage Files hereunder.  The requesting party will arrange for theprovision of such services at its sole cost and expense (or, at such party’soption, reimburse Custodian for all costs and expenses incurred by Custodianconsistent with such Written Instructions) and will maintain such insuranceagainst loss or damage to the Mortgage Files as the requesting party deemsappropriate.  Without limiting thegenerality of the provisions of Section 20 below, it is expressly agreedthat in no event shall Custodian have any liability for any losses or damagesto any person, arising out of actions of Custodian in accordance withinstructions of the requesting party, unless such performance constitutesnegligence, lack of good faith or willful misconduct on the part of theCustodian or any of its directors, officers, agents or employees.  In the absence of Written Instructions from aSeller or the Buyer, the Custodian shall not ship the related Mortgage Files.

 

14

----

 

Section 14.                                      Examinationand Copies of Mortgage Files.

 

Upon the written requestof the Buyer, Buyer and its respective agents, accountants, attorneys, auditorsand prospective purchasers will be permitted, upon one Business Day’s priornotice, during normal business hours to examine the Mortgage Files and anyother documents, records and papers in the possession of or under the controlof the Custodian relating to any or all of the Purchased Mortgage Loans.  Each Seller shall be responsible for any reasonableexpenses in connection with such examinations.

 

Upon the written requestof any Seller or the Buyer, the Custodian shall provide such party, at suchparty’s expense, with copies of the Mortgage Notes, Mortgages, Assignment ofMortgages and other documents relating to one or more of the Mortgage Loans.

 

Section 15.                                      Insuranceof the Custodian.

 

At its own expense, theCustodian shall maintain at all times during the existence of this Agreementand keep in full force and effect a fidelity bond, errors and omissionsinsurance and document hazard insurance. All such insurance shall be in amounts, with standard coverage andsubject to standard deductibles, all as is customary for insurance typicallymaintained by institutions which act as custodian.  A certificate of an Authorized Representativeof the Custodian shall be furnished to each Seller and the Buyer, upon writtenrequest, stating that such insurance is in full force and effect.

 

Section 16.                                      PeriodicStatements.

 

Upon the reasonableWritten Instructions of the Buyer or any Seller at any time, at the expense ofsuch Seller, the Custodian shall provide to the Buyer or such Seller, as thecase may be, a list of all the Purchased Mortgage Loans for which the Custodianholds a Mortgage File.

 

Section 17.                                      Feesand Expenses of the Custodian.

 

The Custodian shallcharge such fees for its services under this Agreement as are set forth in aseparate agreement between the Custodian and the Sellers, the payment of whichfees, together with the Custodian’s expenses (including legal fees andexpenses) in connection herewith, shall be solely the obligation of theSellers.

 

The foregoing obligationto pay the Custodian its fees and reimburse the Custodian for its expenses inconnection with services provided by the Custodian hereunder shall survive anyresignation or removal of the Custodian (for all fees and expenses incurredprior to such resignation or removal) or the termination or assignment of thisAgreement.

 

Section 18.                                      CustodianRepresentations.

 

The Custodian (and anysuccessor Custodian subject to this Agreement as of the date of appointment ofsuch custodian) hereby represents and warrants as of the date hereof and as ofeach date it delivers a Mortgage Loan Schedule and Exception Report that:

 

15

----

 

(a)                                  TheCustodian is (i) a national banking association duly authorized, validlyexisting and in good standing under the laws of the United States and(ii) duly qualified and in good standing and in possession of allrequisite authority, power, licenses, permits and franchises in order toexecute, deliver and comply with its obligations under the terms of thisAgreement;

 

(b)                                 Theexecution, delivery and performance of this Agreement have been duly authorizedby all necessary corporate action and the execution and delivery of thisAgreement by the Custodian in the manner contemplated herein and theperformance of and compliance with the terms hereof by it will not(i) violate, contravene or create a default under any applicable laws,licenses or permits, or (ii) violate, contravene or create a default underany charter document or bylaw of the Custodian;

 

(c)                                  Theexecution and delivery of this Agreement by the Custodian and the performanceof and compliance with its obligations and covenants hereunder do not requirethe consent or approval of any governmental authority or, if such consent isrequired, it has been obtained;

 

(d)                                 ThisAgreement, and the original Trust Receipt issued hereunder (when executed anddelivered by the Custodian) will constitute valid, legal and bindingobligations of the Custodian, enforceable against the Custodian in accordancewith their respective terms, except as the enforcement thereof may be limitedby applicable bankruptcy or other debtor relief laws and that certain equitableremedies may not be available regardless of whether enforcement is sought inequity or at law;

 

(e)                                  Tothe Custodian’s knowledge, there is no litigation pending which, if determinedadversely to Custodian, would adversely affect the execution, delivery orenforceability of this Agreement, or any of the duties or obligations ofCustodian hereunder;

 

(f)                                    TheCustodian shall follow the Written Instructions of the Buyer, at the Buyer’sexpense, to protect or maintain any interest in real property securing theMortgage Loan subject to this Agreement and any insurance applicable thereto;

 

(g)                                 TheCustodian shall not be responsible or liable for, and makes no representationor warranty with respect to, the validity, adequacy or perfection of any lienupon or security interest in any Mortgage Loans or Mortgage Files (other thanthe Custodian’s obligation to take possession of the Mortgage File for eachMortgage Loan in accordance with the terms of this Agreement); and

 

(h)                                 TheCustodian is not controlled by, under common control with or otherwiseaffiliated with or related to any Seller, and the Custodian covenants andagrees with Buyer that prior to any such affiliation in the future, it shallnotify Buyer.

 

Section 19.                                      NoAdverse Interest of the Custodian.

 

By execution of thisAgreement, the Custodian represents and warrants that it currently holds, andduring the existence of this Agreement shall hold, no adverse interest, by wayof security or otherwise, in any Purchased Mortgage Loan, and hereby waives andreleases any such interest which it may have in any Purchased Mortgage Loan asof the date hereof.  The

 

16

----

 

Purchased Mortgage Loansshall not be subject to any security interest, lien or right of set-off by theCustodian or any third party claiming through the Custodian, and the Custodianshall not pledge, encumber, hypothecate, transfer, dispose of, or otherwisegrant any third party interest in, the Purchased Mortgage Loans.

 

Section 20.                                      Concerningthe Custodian.

 

(a)                                  TheCustodian shall have no duties or responsibilities except those specificallyset forth herein.  The Custodian shallhave no responsibility nor duty with respect to any Mortgage Files while not inits possession.  If the Custodianrequests instructions from the Buyer with respect to any act, action or failureto act in connection with this Agreement, the Custodian shall be entitled torefrain from taking such action and continue to refrain from acting unless anduntil the Custodian shall have received Written Instructions from the Buyerwith respect to a Mortgage File without incurring any liability therefore tothe Buyer, any Seller or any other Person.

 

(b)                                 TheCustodian shall not be liable for any action or omission to act hereunderexcept for its own negligence or lack of good faith or willful misconduct.  In no event shall the Custodian have anyresponsibility to ascertain or take action except as expressly provided herein.

 

(c)                                  Withoutlimiting the generality of the foregoing, the Custodian may conclusively relyupon and shall be fully protected in acting in good faith upon any WrittenInstructions, notice or other communication from the Buyer or Sellers receivedby it and which it reasonably believes to be genuine and duly authorized withrespect to all matters pertaining to this Agreement and its duties hereunder.

 

(d)                                 TheCustodian shall not be liable to the Sellers, the Buyer, or any other Personwith respect to any action taken or not taken by it in good faith in theperformance of its obligations under this Agreement.  The obligations of the Custodian shall bedetermined solely by the express provisions of this Agreement.  No representation, warranty, covenant,agreement, obligation or duty of the Custodian shall be implied with respect tothis Agreement or the Custodian’s services hereunder.

 

(e)                                  TheCustodian shall be under no duty or obligation to inspect, review or examinethe Mortgage Files to determine that the contents thereof are genuine, enforceableor appropriate for the represented purpose or that they have been actuallyrecorded, are in the proper form for recordation or that they are not otherthan what they purport to be on their face.

 

(f)                                    Noprovision of this Agreement shall require the Custodian to expend or risk itsown funds or otherwise incur financial liability (other than expenses orliabilities otherwise required to be incurred by the terms of this Agreement)in the performance of its duties under this Agreement if it shall have a goodfaith belief that repayment of such funds or indemnity satisfactory to it isnot reasonably assured to it.

 

(g)                                 TheCustodian shall use the same degree of care and skill as is reasonably expectedof financial institutions acting in comparable capacities which are held to astandard of care of ordinary negligence, and this Section 20 shall not beinterpreted to impose upon the Custodian a higher standard of care than thatset forth in this sentence.

 

17

----

 

Section 21.                                      Indemnification.

 

(a)                                  EachSeller agrees to, jointly and severally reimburse, indemnify and hold harmlessthe Custodian and its directors, officers, employees, or agents (each, an “Indemnitee”)from and against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suit, costs, expenses, or disbursements of anykind or nature whatsoever including reasonable fees and expenses of counsel,court costs and costs of appeal that may be imposed on, incurred by, or assertedagainst it or them in any way in connection with or related to Custodian’sexecution and performance of this Agreement and any transactions contemplatedhereby, including but not limited to the claims of any third parties, includingBuyer, except in the case of loss, liability or expense resulting from aCustodial Delivery Failure (as defined below), the Custodian’s negligence, lackof good faith or willful misconduct. Such indemnification shall survive the termination of this Agreement andthe resignation or removal of the Custodian hereunder.

 

(b)                                 Inthe event that the Custodian fails to produce a Mortgage Note, Assignment ofMortgage or any other document related to a Purchased Mortgage Loan that was inits possession within two (2) Business Days after required or requested anySeller or Buyer, or otherwise determines that a document that it had previouslycertified as in its possession, is no longer in its possession, and that(i) such document is not outstanding pursuant to a Request for Release andReceipt in the form annexed hereto as Exhibit 3; and (ii) suchdocument was held by the Custodian, as evidenced by a previously deliveredMortgage Loan Schedule and Exception Report, on behalf of a Seller orBuyer, as applicable, (a “Custodial Delivery Failure”) then theCustodian shall (a) with respect to any missing Mortgage Note, promptlydeliver to Buyer or such Seller upon request, a Lost Note Affidavit in the formof Exhibit 9 hereto and (b) with respect to any missingdocument related to such Mortgage Loan, including but not limited to a missingMortgage Note, indemnify such Seller and Buyer in accordance with thesucceeding paragraph of this Section.

 

(c)                                  TheCustodian agrees to indemnify and hold the Buyer and each Seller, and theirrespective trustees, shareholders, officers, designees, successors and assignsharmless against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind or nature whatsoever, including reasonable attorneys’ fees, court costsand costs of appeal that may be imposed on, incurred by, or asserted against itor them in any way relating to or arising from the claims of any third party inconnection with or related to a Custodial Delivery Failure or the Custodian’sbreach of this Agreement, or the negligence, lack of good faith or willfulmisconduct on the part of the Custodian. The foregoing indemnification shall survive the termination of thisAgreement and the resignation or removal of the Custodian hereunder.

 

Section 22.                                      Mergeror Consolidation of Custodian.

 

Any Person into which theCustodian may be merged or converted or with which it may be consolidated, orany Person resulting from any merger, conversion or consolidation to which theCustodian shall be a party, or any Person succeeding to the business of theCustodian, shall be the successor of the Custodian hereunder, without theexecution or filing of any paper or any

 

18

----

 

further act on the partof any of the parties hereto, anything herein to the contrary notwithstanding.

 

Section 23.                                      Removal of theCustodian With Respect to Some or All of the Purchased Mortgage Loans.

 

Upon an Event of Defaultunder the Repurchase Agreement the Buyer may (i) require, at therespective Seller’s expense, the Custodian to complete the endorsements on theMortgage Notes in the name of the Buyer and to complete the Assignments ofMortgage in the name of the Buyer and/or (ii) remove and discharge theCustodian from the performance of its duties under this Agreement with respectto some or all of the Mortgage Loans by 30 days’ written notice from the Buyerto the Custodian with a copy to such Seller. In the event that the Buyer removes the Custodian from the performanceof its duties under this Agreement with respect to all of the Mortgage Loans,the Buyer may, in its sole discretion, after notice to such Seller, eitherappoint a successor Custodian to act on behalf of the Buyer by writteninstrument, or terminate this Agreement. In the event of any such new appointment, the Custodian shall promptlytransfer to the successor Custodian or the Buyer, as directed by the Buyer, theapplicable Mortgage Loan documents being administered under thisAgreement.  In the event of any suchappointment, the Buyer shall be responsible for the fees of the successorCustodian unless otherwise agreed by such Seller and the Buyer.

 

In the event oftermination of this Agreement pursuant to this Section 23, the Custodianshall follow the reasonable Written Instructions of Buyer with respect to thedisposition of the respective Mortgage Loan documents.  Concurrently with the transfer and release ofall of the Mortgage Files by the Custodian, the Buyer shall submit the relatedTrust Receipts to the Custodian for cancellation.  Notwithstanding the foregoing, in the eventthat the Buyer terminates this Agreement with respect to some, but not all, ofthe Mortgage Loans, this Agreement shall remain in full force and effect withrespect to any Purchased Mortgage Loans for which this Agreement is notterminated hereunder.  In addition, theBuyer and the Custodian may, at the sole option of the Buyer, enter into aseparate custodial agreement which shall be mutually acceptable to the partieswith respect to any or all or the Mortgage Loans with respect to which thisAgreement is terminated.

 

Section 24.                                      Terminationby the Custodian.

 

The Custodian mayterminate its obligations hereunder upon 60 days’ prior written notice to theBuyer and each Seller.  Such resignationshall take effect upon (i) the appointment of a successor Custodianacceptable to the Buyer within such 60 day period; and (ii) delivery ofall Mortgage Files to the successor Custodian or, if no successor Custodian hasbeen appointed, to Buyer.

 

Upon such termination andappointment of a successor Custodian and surrender of all outstanding TrustReceipts, the Custodian shall (i) promptly transfer to the successorCustodian, as directed in writing by the Buyer, all Mortgage Files beingadministered under this Agreement, and (ii) if the endorsements on theMortgage Notes and the Assignments of Mortgage have been completed in the nameof the Custodian, assign the Mortgages and endorse without recourse theMortgage Notes to the successor Custodian or as otherwise directed in writingby the Buyer.

 

19

----

 

Section 25.                                      Successorsand Assigns.

 

This Agreement shallinure to the benefit of the successors and assigns of the parties hereto.  Neither the Sellers nor Custodian shallassign their respective rights or obligations hereunder or any interest thereinwithout the prior written consent of Buyer. The Buyer may assign its rights hereunder without the prior consent ofeither the Sellers or the Custodian.

 

Section 26.                                      AuthorizedRepresentatives.

 

Each individualdesignated as an authorized representative of the Custodian, each Seller andthe Buyer (each, an “AuthorizedRepresentative”), is authorized to give and receive notices,requests and instructions and to deliver certificates and documents inconnection with this Agreement on behalf of the Custodian, each Seller or theBuyer, respectively, (in each case subject to their designated limit ofauthority, if any) and the specimen signature for each such AuthorizedRepresentative of the Custodian, each Seller and the Buyer initially authorizedhereunder is set forth on Exhibits 4, 5 and 6,respectively.  From time to time, theCustodian, the Sellers and the Buyer may, by delivering to the other parties arevised exhibit, change the information previously given pursuant to thisSection, but each of the parties hereto shall be entitled to rely conclusivelyon the then current exhibit until receipt of a superseding exhibit.  Each Seller shall deliver or cause to bedelivered to the Custodian an Authorized Representatives exhibit for eachsubservicer designated by such Seller in connection with this Agreement; *provided*that the Custodian shall not recognize any requestfrom such Seller’s subservicer unless and until such Seller has given theCustodian written notice identifying such subservicer and such AuthorizedRepresentatives exhibit is received by the Custodian.  The Custodian shall be entitled to relyconclusively upon (i) written notice from each Seller identifying asubservicer authorized to give instructions (including Written Instructions)under this Agreement until receipt of written notice from such Seller revokingsuch authority and (ii) the most recent Authorized Representatives exhibitdelivered to it by a subservicer of each Seller until receipt of a supersedingexhibit.  If the Custodian shall at anytime receive conflicting instructions from any Seller and a subservicer of suchSeller, the Custodian shall be entitled to rely on the instructions of suchSeller.

 

Section 27.                                      Notices.

 

Any and all notices,statements, demands or other communications hereunder may be given by a partyto the other by mail, facsimile, telegraph, messenger or otherwise to theaddress listed below, or such other address as may be specified in a notice ofchange of address hereafter received by the other:

 
| SELLERS: |   | MortgageIT, Inc.                         |
|----------|--------|------------------------------------------|
|     |   | 33 Maiden Lane                           |
|     |   | 6th Floor                                |
|     |   | New York, New York  10038                |
|     |   | Attention:  Chief Operating Officer |
|     |   | Telephone:  (212) 651-4691          |
|     |   | Facsimile:  (212) 651-4680          |

 

20

----

 
|       |   | MortgageIT Holdings,  Inc.               |
|------------|--------|------------------------------------------|
|       |   | 33 Maiden Lane                           |
|       |   | 6th Floor                                |
|       |   | New York, New York  10038                |
|       |   | Attention:  Chief Operating Officer |
|       |   | Telephone:  (212) 651-4691          |
|       |   | Facsimile:  (212) 651-4680          |
|       |   |                                     |
| BUYER:     |   | Merrill Lynch Mortgage  Capital Inc.     |
|       |   | 4 World Financial  Center                |
|       |   | 10th Floor                               |
|       |   | New York, New York  10080                |
|       |   | Attention:  James B. Cason          |
|       |   | Telephone:  (212) 449-1219          |
|       |   | Facsimile:  (212) 449-3673          |
|       |   |                                     |
| CUSTODIAN: |   | Deutsche Bank National  Trust Company    |
|       |   | 1761 East St. Andrew  Place              |
|       |   | Santa Ana, California  92705             |
|       |   | Attention:  Mortgage Custody-MG030C |
|       |   | Telephone:  (714) 247-6000          |
|       |   | Facsimile:  (714) 247-6082          |

 

All notices, demands andrequests hereunder may be made orally, to be confirmed promptly in writing, orby other communication as specified in the preceding sentence.  Any such notice, demand or request shall bedeemed to have been received on the date delivered to the premises of theaddressee (as evidenced, in the case of registered or certified mail, by thedate noted on the return receipt, or in the case of facsimile or othertelecommunication or electronic communication device, the date noted on theconfirmation of such transmission).

 

Section 28.                                      Reproductionof Documents.

 

This Agreement and alldocuments relating thereto, including, without limitation, (i) consents,waivers and modifications which may hereafter be executed, (ii) documentsreceived by any party at closing, and (iii) certificates and otherinformation previously or hereafter furnished, may be reproduced by anyphotographic, photostatic, microfilm, microcard, miniature photographic orother similar process.  The parties agreethat any such reproduction shall be admissible in evidence as the originalitself in any judicial or administrative proceeding, whether or not theoriginal is in existence and whether or not such reproduction was made by aparty in the regular course of business, and that any enlargement, facsimile orfurther reproduction of such reproduction shall likewise be admissible inevidence.

 

Section 29.                                      Amendments;Entire Agreement.

 

No amendment or waiver ofany provision of this Agreement nor consent to any departure herefrom shall inany event be effective unless the same shall be in writing and signed by allthe parties hereto, and then such amendment, waiver or consent shall beeffective only in

 

21

----

 

the specific instance andfor the specific purpose for which given. The Custodian shall not be required to execute any amendment whichadversely affects its rights, duties, indemnities or immunities hereunder.

 

Section 30.                                      EntireAgreement; Severability.

 

This Agreement, togetherwith the exhibits, annexes and other writings referred to herein or deliveredpursuant hereto, constitute the entire agreement and understanding of theparties with respect to the matters and transactions contemplated by thisAgreement and supersede any prior agreement and understandings with respect tothose matters and transactions.  Eachprovision and agreement herein shall be treated as separate and independentfrom any other provision or agreement herein and shall be enforceablenotwithstanding the unenforceability of any such other provision or agreement.

 

Section 31.                                      GoverningLaw; Counterparts.

 

This Agreement shall begoverned by the internal laws of the State of New York, without giving effectto the conflict of laws principles thereof. For the purpose of facilitating the execution of this Agreement as hereinprovided and for other purposes, this Agreement may be executed simultaneouslyin any number of counterparts, each of which counterparts shall be deemed to bean original, and such counterparts shall constitute and be one and the sameinstrument.

 

Section 32.                                      Submissionto Jurisdiction.

 

With respect to any claimarising out of this Agreement each party (a) irrevocably submits to thenonexclusive jurisdiction of the courts of the State of New York and theUnited States District Court located in the Borough of Manhattan in NewYork City, and (b) irrevocably waives (i) any objection which it mayhave at any time to the laying of venue of any suit, action or proceedingarising out of or relating hereto brought in any such court, (ii) anyclaim that any such suit, action or proceeding brought in any such court hasbeen brought in any inconvenient forum and (iii) the right to object, withrespect to such claim, suit, action or proceeding brought in any such court,that such court does not have jurisdiction over such party.  Nothing herein will be deemed to preclude anyparty hereto from bringing an action or proceeding in respect of this Agreementin any jurisdiction other than as set forth in this Section 32.

 

22

----

 

IN WITNESS WHEREOF, theBuyer, each Seller and the Custodian have caused their name to be duly signedto this Custodial Agreement by their respective officers thereunto dulyauthorized, all as of the date first above written.

 
|   | MERRILL  LYNCH MORTGAGE CAPITAL  INC.,         |
|--------|------------------------------------------------|
|   | Buyer                                          |
|   |                                           |
|   | By:                                            | /s/ JOHN WINCHESTER |
|   |                                           |   |
|   | Name:                                          | JOHN WINCHESTER |
|   |                                           |   |   |
|   | Title:                                         | Vice President |
|   |                                           |   |   |
|   |                                           |   |   |
|   | MORTGAGEIT, INC.,    Seller          |
|   |                                           |   |   |
|   | By:                                            | /s/ JOHN R. CUTI |
|   |                                           |   |   |
|   | Name:                                          | JOHN R. CUTI |
|   |                                           |   |   |
|   | Title:                                         | Secretary |
|   |                                           |   |   |
|   |                                           |   |   |
|   | MORTGAGEIT HOLDINGS,  INC.,   Seller |
|   |                                           |   |   |
|   | By:                                            | /s/ JOHN R. CUTI |
|   |                                           |   |   |
|   | Name:                                          | JOHN R. CUTI |
|   |                                           |   |   |
|   | Title:                                         | Secretary |
|        |                                                |  |  |  |  |

 

23

----

 
|   | DEUTSCHE  BANK TRUST NATIONAL  COMPANY, |
|--------|-----------------------------------------|
|   |  as  Custodian                     |
|   |                                    |   |   |
|   | By:                                     | /s/ CHRISTOPHER  CORCORAN |
|   |                                    |   |   |
|   | Name:                                   | CHRISTOPHER CORCORAN |
|   |                                    |   |   |
|   | Title:                                  | Assistant Vice  President |
|   |                                    |   |   |
|   |                                    |   |   |
|   | By:                                     | /s/ KEVIN R. FISCHER |
|   |                                    |   |   |
|   | Name:                                   | KEVIN R. FISCHER |
|   |                                    |   |   |
|   | Title:                                  | Vice President |
|        |                                         |  |  |  |  |

 

24

----

 

EXHIBIT 1

 

MORTGAGE FILE

 

(a) The originalMortgage Note bearing all intervening endorsements, endorsed “Pay to the orderof             without recourse” and signed in the name of the last endorsee (the “Last Endorsee”)by a Person (in the event that the Mortgage Loan was acquired by the LastEndorsee in a merger, as notified to the Custodian in writing, the signaturemust be in the following form:  “[LastEndorsee], successor by merger to [name of predecessor]”; in the event that theMortgage Loan was acquired or originated by the Last Endorsee while doingbusiness under another name as notified to the Custodian in writing, thesignature must be in the following form: “[Last Endorsee], formerly known as [previous name]”).

 

(b) The original ofthe guarantee executed in connection with the Mortgage Note (if any).

 

(c) The originalMortgage with evidence of recording thereon, or a copy thereof stamp certifiedby an officer of the Seller, escrow agent, title company or closing attorneycertifying that such represents a true and correct copy of the original andthat such original has been submitted for recordation in the appropriategovernmental recording office of the jurisdiction where the Mortgaged Propertyis located.

 

(d) The originals ofall assumption, modification, consolidation or extension agreements withevidence of recording thereon, or copies thereof stamp certified by of theSeller, escrow agent, title company or closing attorney certifying that suchrepresent true and correct copies of the originals and that such originals haveeach been submitted for recordation in the appropriate governmental recordingoffice of the jurisdiction where the Mortgaged Property is located.

 

(e) Except for eachMortgage Loan registered in the MERS System, the original Assignment ofMortgage in blank for each Mortgage Loan, in form and substance acceptable forrecording and signed in the name of the Last Endorsee (in the event that theMortgage Loan was acquired by the Last Endorsee in a merger, as notified to theCustodian in writing, the signature must be in the following form:  “[Last Endorsee], successor by merger to[name of predecessor]”; in the event that the Mortgage Loan was acquired ororiginated while doing business under another name, as notified to theCustodian in writing, the signature must be in the following form:  “[Last Endorsee], formerly known as [previousname]”).

 

(f) The originals ofall intervening assignments of mortgage (if any) with evidence of recordingthereon, showing an unbroken chain of title from the originator thereof to theLast Endorsee or copies thereof stamp certified by an officer of the Seller,escrow agent, title company or closing attorney certifying that such representtrue and correct copies of the originals and that such originals have each beensubmitted for recordation in the appropriate governmental recording office ofthe jurisdiction where the Mortgaged Property is located.

 

(g) The originalattorney’s opinion of title and abstract of title or the original mortgageetitle insurance policy, or if the original mortgagee title insurance policy hasnot been issued, the irrevocable commitment to issue the same.

 

Exh. 1-1

----

 

(h) The original ofany security agreement, chattel mortgage or equivalent document executed inconnection with the Mortgage Loan.

 

(i)  At the request of Buyer and as notified tothe Custodian, with respect to a Mortgage Loan that is covered by a PrimaryInsurance Policy, a certified copy of such Primary Insurance Policy or evidenceof delegated underwriter approval.

 

(j)  At the request of Buyer and as notified tothe Custodian, with respect to a Mortgage Loan which is covered by poolinsurance, a pool insurer pool certification.

 

From time to time, theSeller shall forward to the Custodian additional original documents or additionaldocuments evidencing an assumption, modification, consolidation or extension ofa Mortgage Loan.

 

Exh. 1-2

----

 

Exhibit 1-A

 

CO-OP LOANMORTGAGE FILE

 

Thefollowing items should be included with respect to any Co-op Loan:

 

(a) The (i) originalMortgage Note, endorsed (on the Mortgage Note or an allonge attached thereto)“Pay to the order of                      ,without recourse” and signed by facsimile signature in the name of the Sellerby an authorized officer, with all intervening endorsements showing a complete,valid and proper chain of title from the originator of such Mortgage Loan tothe Seller; or (ii) a certified copy of the Mortgage Note (endorsed as providedabove) together with a lost note affidavit providing indemnification to theholder thereof for any losses incurred due to the fact that the originalMortgage Note is missing;

 

(b) The originalAssignment of Lease Agreement for each Mortgage Loan, from the Seller signed byoriginal or by facsimile signature to                       ,which assignment shall be in form and substance acceptable for recording(except for the recording information);

 

(c) the original StockCertificate and related Stock Power, in blank, executed by the Mortgagor withsuch signature guaranteed and original Stock Power, in blank executed by theSeller;

 

(d) the originalProprietary Lease and the Assignment of Proprietary Lease executed by theMortgagor in blank or if the Proprietary Lease has been assigned by the Mortgagorto the Seller, then the Seller must execute an assignment of the Assignment ofProprietary Lease in blank;

 

(e) the originalRecognition Agreement and the original assignment of Recognition Agreement;

 

(f) the recorded stateand county Financing Statements and all changes thereto;

 

(g) an Estoppel Letterand/or consent;

 

(h) the Co-op LienSearch;

 

(i) the guaranty of theMortgage Note and Co-op Loan, if any; and

 

(j) the original of anysecurity agreement or similar document executed in connection with the Co-opLoan.

 

Exh. 2-1

----

 

EXHIBIT 2

 

FORM OF TRUSTRECEIPT

 

Merrill Lynch MortgageCapital Inc.4 World Financial Center10th FloorNew York, New York 10080

 

Re:                               TheAmended and Restated Custodial Agreement, dated as of August 4, 2004, (the“Custodial Agreement”) among Merrill Lynch Mortgage Capital Inc. (the “Buyer”),MortgageIT, Inc., (a “Seller”), MortgageIT Holdings, Inc., (a “Seller”,and collectively with MortgageIT, Inc. the “Sellers”) and Deutsche BankNational Trust Company, as Custodian (the “Custodian”)                         

 

Ladies and Gentlemen:

 

The Custodian herebyacknowledges that the above named person has been identified to it as theregistered holder of this Trust Receipt and has the rights of a “Buyer” underthe Custodial Agreement with respect to the Purchased Mortgage Loans identifiedin the Mortgage Loan Schedule attached hereto.  Pursuant to the Custodial Agreement, theCustodian shall hold the Purchased Mortgage Loans, identified in the Mortgage LoanSchedule and Exception Report attached hereto and updated from time totime in accordance with Section 3 of the Custodial Agreement, for theexclusive benefit of the above addressee.

 

In accordance with theprovisions of Section 3 of the Custodial Agreement, the undersigned, asthe Custodian, hereby certifies that as to each Purchased Mortgage Loanidentified in the Mortgage Loan Schedule attached hereto (other than anyMortgage Loan paid in full or any Mortgage Loan listed on the attachment hereto)it has received the Mortgage Files and it has reviewed the Mortgage Files andhas determined that, except as noted in the exception report attached hereto(i) all of the documents in paragraphs (a), (c), (e), (f), (g) and, to theextent provided, (b), (d), and (h) on Exhibit 1 attached hereto arein its possession, (ii) such documents have been reviewed by it and appearregular on their face and relate to such Mortgage Loan; (iii) based on itsexamination and only as to the foregoing documents, the information set forthin the Mortgage Loan Schedule respecting such Mortgage Loan accuratelyreflects the information contained in the documents in the Mortgage File as to(a) the name of the mortgagor, (b) the address of the MortgagedProperty, (c) the interest rate on the Mortgage Note, (d) theoriginal principal amount of the Mortgage Note, and (e) the maturity dateof the Mortgage Note; (iv) the Mortgage Note and the Mortgage each bearsan original signature or signatures purporting to be the signature or signaturesof the person or persons named as the maker and mortgagor or grantor; or, inthe case of certified copies of the Mortgage, such copies bear a reproductionof such signature or signatures; (v) all signatures on the Mortgageproperly relate to the Mortgage Note and the Custodian has examined theMortgage for the completions of any required

 

Exh. 2-1

----

notarization and hasverified that any rider or addendum properly relates to the Mortgage and thatthe signatures on any rider or addendum match the signatures on the Mortgage;(vi) the original principal amount of the indebtedness secured by the Mortgageis identical to the original principal amount of the Mortgage Note;(vii) if the Mortgage Note does not name a Seller as the holder or payee,the Mortgage Note bears original endorsements that complete the chain ofownership from the original holder or payee to the Last Endorsee;(viii) if the Mortgage does not name a Seller or MERS as the mortgagee orbeneficiary, the original of the Assignment of Mortgage from the namedmortgagee or beneficiary bears the original signature purporting to be the signatureof the named mortgagee or beneficiary (and any other necessary party includingsubsequent assignors) or in the case of copies certified by a Seller, suchcopies bear a reproduction of such signature or signatures and that theAssignment of Mortgage and any intervening assignments of mortgage complete thechain of title from the originator to the Last Endorsee; (ix) theMortgagor name of the Assignment of Mortgage agrees with the related MortgageLoan Schedule; (x) each Mortgage Note in its possession has been endorsedas provided in Exhibit 1 to the Custodial Agreement; and(xi) each Assignment of Mortgage has been executed as provided in Exhibit 1to the Custodial Agreement. Notwithstanding the foregoing, the Custodian shall not be responsiblefor ensuring that the Mortgage Loan Schedule and Exception Report attachedhereto in the possession of the Buyer is the most current Mortgage LoanSchedule and Exception Report.  TheBuyer may request the Custodian to provide it with a copy of the currentMortgage Loan Schedule and Exception Report with respect to the TrustReceipt.

 

Each Mortgage LoanSchedule and Exception Report covering all Purchased Mortgage Loanspurchased by the Buyer, delivered to the Buyer by the Custodian shall supersedeand cancel the previously delivered Mortgage Loan Schedule and ExceptionReport attached to the Trust Receipt, and shall control and be binding upon theparties hereto; *provided**that*, to the extent that the Custodian hasindicated that is has in its possession a document, the Custodian may notsubsequently note that such document is not in its possession unless suchdocument has been released from its possession as provided in the CustodialAgreement or it notifies the Buyer that such document is missing in accordancewith Section 21 of the Custodial Agreement.

 

Capitalized terms usedbut not otherwise defined herein shall have the meanings set forth in theabove-referenced Custodial Agreement.

 

 
|   | DEUTSCHE BANK NATIONAL  TRUST  COMPANY |
|--------|----------------------------------------|
|   |   as  Custodian              |
|   |                                   |
|   |                                   |
|   | By:                                    |   |   |
|   |                                   |   |
|   | Name:                                  |   |   |
|   |                                   |   |
|   | Title:                                 |   |   |
|        |                                        |  |  |  |  |  |  |

 

Exh. 2-2

----

 

EXHIBIT 3

 

FORM OF REQUESTFOR RELEASE OF DOCUMENTS AND RECEIPT

 

To:                              [                                        ]

 

Re:                               TheAmended and Restated Custodial Agreement, dated as of August 4, 2004, (the“Custodial Agreement”) among Merrill Lynch Mortgage Capital Inc. (the “Buyer”),MortgageIT, Inc., (a “Seller”), MortgageIT Holdings, Inc., (a “Seller”,and collectively with MortgageIT, Inc. the “Sellers”) and Deutsche BankNational Trust Company, as Custodian (the “Custodian”)

 

In connection with theadministration of the Purchased Mortgage by you as the Custodian on behalf ofthe Buyer, we request the release,and acknowledge receiptofthe (Mortgage File/[specify documents]) for the Purchased Mortgage Loandescribed below, for the reason indicated.

 

Mortgagors Name, Address& Zip Code:

 

Mortgage Loan Number:

 

Reason for RequestingDocuments (unless otherwise indicated the Mortgage Loan waspaid in full or rescinded (check only if applicable)

 

o1.                           Mortgage Loan paid in full.(The Custodian shall delete the Mortgage Loan from the applicable Mortgage LoanSchedule and send the amended Mortgage Loan Schedule to Buyer).

 

o2.                           Repurchase of Mortgage Loanpursuant to the Repurchase Agreement. (The Custodian shall delete the Mortgage Loan from the applicableMortgage Loan Schedule and send the amended Mortgage Loan Schedule tothe Buyer.)

 

o3.                           Delivery of substitutedMortgage Loan.  (The Custodian is herebyauthorized to delete the Mortgage Loan from the applicable Mortgage LoanSchedule attached hereto and send the amended Mortgage LoanSchedule to Buyer.)

 

o4.                           Mortgage Loan liquidated by                    .  (The Custodian is hereby authorized todelete the Mortgage Loan from the applicable Mortgage LoanSchedule attached hereto and send the amended Mortgage LoanSchedule to the Buyer.)

 

o5.                           Mortgage Loan is otherwisereleased for servicing.

 

o6.                           Mortgage Loan released to anApproved Takeout Investor pursuant to Notice of Bailment and Bailee Letter.

 

Exh. 3-1

----

 

If box 1, 2, 3 or 4 aboveis checked, and if all or part of the Mortgage Files were previously releasedto a Seller , please release to such Seller its previous request and receipt onfile with you, as well as any additional documents in your possession relatingto the specified Mortgage Loan.

 

If box 5 above ischecked, upon the return of all of the above documents to you as the Custodian,please acknowledge your receipt by signing in the space indicated below, andreturning this form.

 

If box 6 above ischecked, please release the documents pursuant to the instructions in theNotice of Bailment.

 

Each Seller understandsand agrees that all documents delivered to each Seller or each Seller’ssubservicer pursuant to this Request for Release shall be returned to theCustodian no later than 10 Business Days from the date hereof (other than withrespect to Items 1-4 and 6). Capitalized terms used and not otherwise defined herein shall have the meaningsset forth in the Custodial Agreement.

 

 
|   | MORTGAGEIT, INC.,           |
|--------|-----------------------------|
|   |   Seller          |
|   |                        |
|   |                        |
|   | By:                         |   |   |
|   |                        |
|   | Name:                       |   |   |
|   |                        |
|   | Title:                      |   |   |
|   |                        |
|   |                        |
|   | MORTGAGEIT HOLDINGS,  INC., |
|   |   Seller          |
|   |                        |
|   |                        |
|   | By:                         |   |   |
|   |                        |
|   | Name:                       |   |   |
|   |                        |
|   | Title:                      |   |   |
|        |                             |  |  |  |  |  |  |

 

Exh. 3-2

----

 
|   | Acknowledged and  Agreed:             |
|--------|---------------------------------------|
|   | MERRILL LYNCH MORTGAGE  CAPITAL  INC. |
|   |                                  |
|   |                                  |
|   | By:                                   |   |   |
|   | Name:                                 |   |   |
|   | Title:                                |   |   |
|        |                                       |  |  |  |  |

 

Exh. 3-3

----

 
|                                    | Acknowledgment of  documents returned to the Custodian, for the reasons listed in items 5 or 6,  as applicable |
|-----------------------------------------|----------------------------------------------------------------------------------------------------------------|
|                                    |                                                                                                           |
| DEUTSCHE BANK NATIONAL  TRUST  COMPANY, |                                                                                                           |
|   as  Custodian               |                                                                                                           |
|                                    |                                                                                                           |
| By:                                     |                                                                                                           |   |   |
| Name:                                   |                                                                                                           |   |   |
| Title:                                  |                                                                                                           |   |   |
| Date:                                   |                                                                                                           |   |   |
|                                         |                                                                                                                |  |  |  |  |  |

 

Exh. 3-4

----

 

EXHIBIT 4

 

AUTHORIZEDREPRESENTATIVES OF THE CUSTODIAN

 
| **Name/Title** |   | **Specimen Signature** |
|----------------|--------|------------------------|
|           |   |                   |
|           |   |                   |

 

Exh. 4-1

----

 

EXHIBIT 5

 

AUTHORIZEDREPRESENTATIVES OF THE SELLERS

 
| **Name**         |   | **Title**                                 |   | **Authorized Signature** |
|------------------|--------|-------------------------------------------|--------|--------------------------|
|             |   |                                      |   |                     |
| Doug W. Naidus   |   | Chief Executive Officer                   |   |                     |
|             |   |                                      |   |                     |
| Donald Epstein   |   | Executive Vice President- Finance         |   |                     |
|             |   |                                      |   |                     |
| Michael Zigrossi |   | Senior Vice President Lending Operations  |   |                     |
|             |   |                                      |   |                     |
| Phillip Kukafka  |   | Chief Lending Officer                     |   |                     |
|             |   |                                      |   |                     |
| Sean McGrath     |   | Senior Vice President- Financial Planning |   |                     |

 

Exh. 5-1

----

 

EXHIBIT 6

 

AUTHORIZEDREPRESENTATIVES OF THE BUYER

 
| **Name**           |   | **Title**          |   | **Authorized  Signature** |
|--------------------|--------|--------------------|--------|---------------------------|
|               |   |               |   |                      |
| James Cason        |   | Director           |   |                      |
|               |   |               |   |                      |
| Joshua Green       |   | Director           |   |                      |
|               |   |               |   |                      |
| Joseph Magnus      |   | Director           |   |                      |
|               |   |               |   |                      |
| Gene Nagotko       |   | Director           |   |                      |
|               |   |               |   |                      |
| John  Winchester   |   | Director           |   |                      |
|               |   |               |   |                      |
| Christopher  Czako |   | Senior  Specialist |   |                      |
|               |   |               |   |                      |
| Lisa  Liao         |   | Senior  Specialist |   |                      |
|               |   |               |   |                      |
| Michael  Saccento  |   | Senior  Specialist |   |                      |

 

Exh. 6-1

----

 

EXHIBIT 7

 

FORM OF MORTGAGELOAN SCHEDULE

 
| 1.     |   | Loan ID#                |
|--------|--------|-------------------------|
|   |   |                    |
| 2.     |   | Account Number          |
|   |   |                    |
| 3.     |   | Property Type           |
|   |   |                    |
| 4.     |   | Loan Purpose            |
|   |   |                    |
| 5.     |   | Loan Rate               |
|   |   |                    |
| 6.     |   | Original Balance        |
|   |   |                    |
| 7.     |   | Actual P & I        |
|   |   |                    |
| 8.     |   | Service Fee             |
|   |   |                    |
| 9.     |   | Original Term           |
|   |   |                    |
| 10.    |   | State                   |
|   |   |                    |
| 11.    |   | Appraisal               |
|   |   |                    |
| 12.    |   | Number of Units         |
|   |   |                    |
| 13.    |   | Margin                  |
|   |   |                    |
| 14.    |   | Life Cap                |
|   |   |                    |
| 15.    |   | Property Street Address |
|   |   |                    |
| 16.    |   | Property City           |
|   |   |                    |
| 17.    |   | Property Zip Code       |
|   |   |                    |
| 18.    |   | Doc Level               |
|   |   |                    |
| 19.    |   | First Payment Date      |
|   |   |                    |
| 20.    |   | Remaining Term          |
|   |   |                    |
| 21.    |   | CLTV                    |
|   |   |                    |
| 22.    |   | Current Balance         |
|   |   |                    |
| 23.    |   | Borrower Last Name      |

 

Exh. 7-1

----

 
| 24.    |   | Borrower First Name                                       |
|--------|--------|-----------------------------------------------------------|
|   |   |                                                      |
| 25.    |   | Next Interest  Adjustment                                 |
|   |   |                                                      |
| 26.    |   | Index Name                                                |
|   |   |                                                      |
| 27.    |   | Last Payment Date                                         |
|   |   |                                                      |
| 28.    |   | Grade/Rating                                              |
|   |   |                                                      |
| 29.    |   | Debt Service Ratio                                        |
|   |   |                                                      |
| 30.    |   | LTV                                                       |
|   |   |                                                      |
| 31.    |   | Owner Occupancy                                           |
|   |   |                                                      |
| 32.    |   | Lien Position                                             |
|   |   |                                                      |
| 33.    |   | Product Description                                       |
|   |   |                                                      |
| 34.    |   | Loan Type (Fixed Rate,  Buy Down, GPM, GEM, ARM, Balloon) |
|   |   |                                                      |
| 35.    |   | Negative Amortization  Indicator                          |
|   |   |                                                      |
| 36.    |   | Interest Rate  Adjustment Frequency                       |
|   |   |                                                      |
| 37.    |   | Annual Payment Cap                                        |
|   |   |                                                      |
| 38.    |   | Periodic Rate Cap on  First Adjustment Date               |
|   |   |                                                      |
| 39.    |   | Lifetime Maximum Rate                                     |
|   |   |                                                      |
| 40.    |   | Negative Amortization  Limit%                             |
|   |   |                                                      |
| 41.    |   | Periodic Rate Cap  Subsequent to First Adjustment Date    |
|   |   |                                                      |
| 42.    |   | Mortgage Insurance  Coverage                              |
|   |   |                                                      |
| 43.    |   | Primary Mortgage  Insurer (if applicable)                 |
|   |   |                                                      |
| 44.    |   | Borrower Credit Quality                                   |
|   |   |                                                      |
| 45.    |   | Risk Grades                                               |
|   |   |                                                      |
| 46.    |   | Current FICO Scores                                       |
|   |   |                                                      |
| 47.    |   | Mortgage Score                                            |
|   |   |                                                      |
| 48.    |   | Silent Second                                             |

 

Exh. 7-2

----

 
| 49.    |   | Current Delinquency  Status (30, 60, 90 Days Past Due, Foreclosure, Bankruptcy) |
|--------|--------|---------------------------------------------------------------------------------|
|   |   |                                                                            |
| 50.    |   | First Mortgage Balance                                                          |
|   |   |                                                                            |
| 51.    |   | Payment Change  Frequency                                                       |

 

Exh. 7-3

----

 

EXHIBIT 8

 

FORM OF REPURCHASERELEASE

 

MERRILL LYNCHMORTGAGE CAPITAL INC.4 World Financial Center10th FloorNew York, New York 10080

 

[date]

 

[                                                              ][                                         ][                                         ][                                         ]Attention: [                       ]

 

[                                                              ]

 

Re:                               TheAmended and Restated Custodial Agreement, dated as of August 4, 2004, (the“Custodial Agreement”) among Merrill Lynch Mortgage Capital Inc. (the “Buyer”),MortgageIT, Inc., (a “Seller”), MortgageIT Holdings, Inc., (a “Seller”,and collectively with MortgageIT, Inc. the “Sellers”) and Deutsche BankNational Trust Company, as Custodian (the “Custodian”).

 

Ladies and Gentlemen:

 

Reference is made to thecaptioned Custodial Agreement. Capitalized terms used herein shall have the respective meaningsascribed to them in the Custodial Agreement unless otherwise expressly definedherein.

 

Upon receipt by the Buyerby wire transfer of immediately available funds on[                           ,         ], inthe amount of $[                           ](the “Release Amount”), all ownershipinterests of the Buyer in each of the Purchased Mortgage Loans listed on theSchedule of Mortgage Loans (consisting of        pages and describing        Mortgage Loans) attached hereto andmade a part hereof (the “Mortgage Loans”)and any related collateral, held by the Custodian on behalf of the Buyer, shallbe completely and fully released. Please wire transfer the Release Amount as follows:

 

Merrill Lynch MortgageCapital Inc.

ABA #

Account Name:

Account #[                              ]

 

The Custodian is herebynotified, pursuant to Section 11 of the Custodial Agreement, of thisrelease and, upon receipt of the notification from the Buyer referenced in thenext paragraph,

 

Exh. 8-1

----

 

the Custodian is directedto immediately deliver the Mortgage Loans and related collateral to [trustee],as trustee (the “Trustee”) under the[Pooling and Servicing Agreement] dated as of[                         ,            ],relating to [name of trust(s)] (the “[Pooling andServicing Agreement]”) among the Trustee, as trustee, [servicer], asservicer, and [depositor], as depositor.

 

Please continue to act asCustodian on behalf of the Buyer pursuant to the Custodial Agreement untilnotified of the receipt by the Buyer of the Release Amount by a representativeof the Buyer, at which time please acknowledge receipt of such notification andyour delivery of the Mortgage Loans and related collateral to the Trustee bysigning below.

 

 
|   | Sincerely,                            |
|--------|---------------------------------------|
|   |                                  |
|   | MERRILL LYNCH MORTGAGE  CAPITAL  INC. |
|   |                                  |
|   |                                  |
|   | By:                                   |   |
|   | Name:                                 |   |
|   | Title:                                |   |
|        |                                       |  |  |  |

 

Exh. 8-2

----

 

Receipt is herebyacknowledged the         day of          ,         of the foregoing notificationof release of ownership interests and delivery of the aforesaid Mortgage Loansand related collateral to the Trustee.

 

 
|   | Deutsche Bank National  Trust Company, as  Custodian under the Custodial Agreement |
|--------|------------------------------------------------------------------------------------|
|   |                                                                               |
|   |                                                                               |
|   | By:                                                                                |   |   |
|   | Name:                                                                              |   |   |
|   | Title:                                                                             |   |   |
|        |                                                                                    |  |  |  |  |

 

Attachments:  Schedule of Mortgage Loans

 

Receipt is herebyacknowledged this       day of         ,          of the AforesaidMortgage Loans and related collateral.

 
|   | [TRUSTEE], as Trustee  under the [Pooling and Servicing Agreement] |
|--------|--------------------------------------------------------------------|
|   |                                                               |
|   |                                                               |
|   | By:                                                                |   |   |
|   | Name:                                                              |   |   |
|   | Title:                                                             |   |   |
|        |                                                                    |  |  |  |  |

 

Exh. 8-3

----

 

EXHIBIT 9

 

FORM OF LOST NOTEAFFIDAVIT

 
| (STATE OF NEW YORK  |   | :           |
|---------------------|--------|-------------|
|                |   | :  ss: |
| (COUNTY OF NEW YORK |   | :           |

 

I,                      ,as                    (title) of Deutsche Bank National Trust Company, as Custodian (the “Custodian”), am authorized to make thisAffidavit on behalf of the Custodian. In connection with the administration of the mortgage loans held by theCustodian on behalf of Merrill Lynch Mortgage Capital Inc.. (“MMC”) or the registered holder of such mortgageloans, as the case may be (the “Investor”),(hereinafter called “Deponent”), beingduly sworn, deposes and says that:

 

1.                                       Custodian’saddress is:

 

2.                                       That(s)he is a                       of[                                                                    ][(“                                      ”)],which was the custodian of the mortgage loan documents for mortgage loan number                   under the Amended and Restated Custodial Agreement dated as of August 4,2004 by and among MMC, MortgageIT, Inc., MortgageIT Holdings,Inc., as the sellers and Deutsche Bank National Trust Company, as custodian.

 

3.                                       Thatthe original of the related note (the “Note”)appears to have been lost mislaid or misfiled by[                                            ](the “Original”).

 

4.                                       Thatthe records of[                                      ]do not show that such Note was ever released, paid off, satisfied, assigned,transferred, pledged or hypothecated and that such Note has been either lost,mislaid, or misfiled by[                                      ].

 

5.                                       That[                                      ]is aware that                     to which the above mentioned mortgage loan is to be assigned, relies upon thestatements made herein as to such Note having been lost, mislaid or misfiled by[                                      ]and never having been released, paid off, satisfied, assigned, transferred,pledged or hypothecated.

 

6.                                       Thatin the event that[                                      ]should ever locate said Note,[                                      ]agrees to provide said Note to[                                      ]upon return of this Lost Note to[                                      ].

 

7.                                       Thatattached hereto is a true and correct copy of (i) the Note, endorsed inblank by the mortgagee, and (ii) the Mortgage or Deed of Trust [strikeone] which secures the Note, which Mortgage or Deed of Trust is recorded at                                      .

 

8.                                       TheCustodian agrees to indemnify and hold the Buyer and each Seller, and theirrespective trustees, shareholders, officers, designees, successors and assignsharmless against any and all liabilities, obligations, losses, damages,penalties, actions, judgments, suits, costs, expenses or disbursements of anykind or nature whatsoever, including reasonable attorney’s

 

Exh. 9-1

----

 

fees, court costs andcosts of appeal that may be imposed on, incurred by, or asserted against it orthem in any way relating to or arising out of the Custodian’s failure todeliver the Note.

 

 
|   | DEUTSCHE  BANK NATIONAL TRUST   COMPANY, as Custodian |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   |                                                            |
|   | By:                                                             |   |   |
|   | Name:                                                           |   |   |
|   | Title:                                                          |   |   |
|        |                                                                 |  |  |  |  |

 

Exh. 9-2

----

 

EXHIBIT 10

 

**FORM OF WET-INK TRUST RECEIPT**

 
|   | Total Original Face: |
|--------|----------------------|
|   | # of Loans:          |
|   | File Name:           |

 

Name of RecipientAddressCity, State ZipAttn:

 

Re:                               TheAmended and Restated Custodial Agreement, dated as of August 4, 2004, (the“Custodial Agreement”) among Merrill Lynch Mortgage Capital Inc. (the “Buyer”),MortgageIT, Inc., (a “Seller”), MortgageIT Holdings, Inc., (a “Seller”,and collectively with MortgageIT, Inc. the “Sellers”) and Deutsche BankNational Trust Company, as Custodian (the “Custodian”).

 

(a)                                  Inaccordance with the provisions of Section 2 of the above-referencedCustodial Agreement (the “Custodial Agreement”),the undersigned, as Custodian, hereby certifies that it will hold each Wet InkMortgage Loan identified on the Mortgage Loan Schedule attached hereto,pursuant to the Custodial Agreement, upon receipt thereof, as agent and baileeof and custodian for and for the exclusive use and benefit of the Buyer.  Any transferee of this Trust Receipt shallbe entitled to have a paper copy of the most recent Mortgage LoanSchedule transmitted by the Custodian as of the date of transfer attachedto this Trust Receipt upon request.  TheCustodian shall notify Buyer via the Mortgage Loan Schedule deliveredpursuant to the immediately following sentence by 5:00 p.m. New York City timeon the eighth (8th) Business Day following the related Purchase Date by notincluding such Mortgage Loans in such Mortgage Loan Schedule in the eventthat either the Custodian does not receive a Mortgage File relating to a WetInk Mortgage Loan or such Mortgage File has been received but does not includethe documents necessary for the Custodian to include such Wet Ink Mortgage Loanon a Mortgage Loan Schedule to a Trust Receipt on the eighth (8th)Business Day following the related Purchase Date.  If such Wet Ink Mortgage Loan is not included on a Mortgage LoanSchedule to a Trust Receipt by 5:00 p.m. New York City time on the eighth(8th) Business Day following the related Purchase Date, the Custodian shallcontinue to hold the Mortgage File relating to such Wet Ink Mortgage Loan asagent and bailee for Buyer until the receipt of instructions to the Custodianin writing to release the related Mortgage File as provided therein.

 

This Wet Ink MortgageLoan Trust Receipt is not a negotiable instrument.  The Buyer may, however, transfer this Wet Ink Mortgage Loan TrustReceipt by a special endorsement to any party. The party or parties that take this receipt from the Buyer or itsaffiliates by special endorsement may only transfer this receipt by a secondendorsement in the Buyer or its affiliate’s favor.

 

The Custodian will acceptand act on instructions with respect to any Wet Ink Mortgage Loan referred toherein upon surrender of this Wet Ink Mortgage Loan Trust Receipt at its

 

Exh. 10-1

----

 

corporate office, or anyother mutually acceptable arrangement, 1761 East St. Andrew Place, Santa Ana,CA 92705, Attn: Mortgage Custody-MG030C.

 

All initially capitalizedterms used herein without definition have the meanings ascribed to them in theabove-referenced Custodial Agreement.

 

**The Mortgage LoanSchedule attached hereto will be amended on each Business Day viaelectronic transmission to the Buyer and each subsequently transmitted MortgageLoan Schedule shall automatically supersede each prior schedule andrender all previously transmitted Mortgage Loan Schedules null and void.**

 

 
|   | DEUTSCHE  BANK NATIONAL TRUST    COMPANY, as Custodian |
|--------|------------------------------------------------------------------|
|   |                                                             |
|   |                                                             |
|   | By:                                                              |   |   |
|   |                                                             | Name: |   |   |
|   |                                                             | Title: |   |   |

 

Exh. 10-2

----

 

EXHIBIT 11

APPROVED BAILEES

 

1.               Credit Suisse – 11Madison Avenue, New York NY 10010-3629

 

2.               Wells Fargo – 3200Robbins Road, Springfield IL 62704

 

3.               WashingtonMutual  - 2210 Enterprise Drive,Florence SC 29501

 

4.               Chase – 10151Deerwood Park Blvd., #300, Jacksonville FL 32256

 

5.               Countrywide HomeLoans – 1991 Crocker Road, Suite 600, Westlake, OH 44145

 

6.               Bear Stearns – 383Madison Avenue, 7th Floor, New York, NY 10179

 

7.               C-Bass- 335 MadisonAvenue, 19th Floor, New York, NY 10017

 

8.               Bayview Financial –4425 Ponce de Leon Blvd. Coral Gables, FL 33146

 

9.               First Horizon –4000 Horizon Way, Irving TX 75063

 

10.         Indy Mac – 155 North LakeAve., Pasadena CA 91101

 

11.         Principal – 5457 TwinKnolls Road, #400, Columbia, MD

 

12.         UBS Warburg – 1285 Avenueof the Americas, 11th Floor, New York NY 10010

 

Exh. 11-1

----

 

EXHIBIT 12

APPROVED TAKEOUTINVESTORS

 

1.               Credit Suisse – 11Madison Avenue, New York NY 10010-3629

 

2.               Wells Fargo – 3200Robbins Road, Springfield IL 62704

 

3.               WashingtonMutual  - 2210 Enterprise Drive,Florence SC 29501

 

4.               Chase – 10151Deerwood Park Blvd., #300, Jacksonville FL 32256

 

5.               Countrywide HomeLoans – 1991 Crocker Road, Suite 600, Westlake, OH 44145

 

6.               Bear Stearns – 383Madison Avenue, 7th Floor, New York, NY 10179

 

7.               C-Bass- 335 MadisonAvenue, 19th Floor, New York, NY 10017

 

8.               Bayview Financial –4425 Ponce de Leon Blvd. Coral Gables, FL 33146

 

9.               First Horizon –4000 Horizon Way, Irving TX 75063

 

10.         Indy Mac – 155 North LakeAve., Pasadena CA 91101

 

11.         Principal – 5457 TwinKnolls Road, #400, Columbia, MD

 

12.         UBS Warburg – 1285 Avenueof the Americas, 11th Floor, New York NY 10010

 

Exh. 12-1

----

 

EXHIBIT 13

BAILEE LETTER

 

MERRILL LYNCHMORTGAGE CAPITAL INC.MASTER BAILEE LETTER

 

                            ,         

 

[ADDRESS]

 

[                 ]

 

Attention:

 

Ladies and Gentlemen:

 

The undersigned MerrillLynch Mortgage Capital Inc. (“Buyer”) shall from time to time, causeDeutsche Bank National Trust Company, as custodian (“Custodian”), todeliver to                 (“Takeout Investor”) [or to                    ,as [custodian] for Takeout Investor] original promissory notes (“MortgageNotes”) evidencing certain mortgage loans (“Mortgage Loans”), alongwith certain other documents comprising the related files (“Custodial Files”)and, in each case, a Notice of Bailment in the form of Schedule 1hereto with respect to each Mortgage Loan (“Notice of Bailment”), forinspection by Takeout Investor prior to the possible purchase by TakeoutInvestor of such Mortgage Loans pursuant to commitments (“Commitments”)from certain Sellers of Mortgage Loans (“Sellers”).  Prior to its delivery to [TakeoutInvestor/Bailee], all of Seller’s right, title and interest in each MortgageLoan and proceeds thereof shall have been conveyed to Buyer in accordance witheach Seller’s agreement with Buyer.

 

Except as otherwiseprovided herein, each Custodial File so delivered to [Takeout Investor/Bailee]is to be held by [Takeout Investor/Bailee], as agent for Custodian, and subjectto only Buyer’s direction and control until released as provided herein.  The proceeds of the sale of each MortgageLoan accepted for purchase by Takeout Investor must be remitted immediatelyupon settlement by Takeout Investor, by wire transfer in immediately availablefunds, in accordance with the following wire instructions:

 
|   |   |   |
|--------|--------|--------|
|   | ABA#   |   |
|   | A/C#   |   |
|   |   |   |
|   | Attn:  |   |

 

*Takeout Investor shall be responsible for making certainthat all of the proceeds from the sale of each Mortgage Loan are received inaccordance with the wire transfer instructions set forth on each Notice ofBailment and Buyer’s interest in the Mortgage Loans shall not be released untilsuch funds are received by Buyer.*

 

Exh. 13-1

----

 

All Mortgage Loandocuments held by [Takeout Investor/Bailee] which are received by [TakeoutInvestor/Bailee] from Custodian with respect to a Mortgage Loan that is notpurchased within thirty days of receipt thereof must be returned immediately toCustodian at the address for delivery of documents set forth on the Notice ofBailment.  Buyer reserves the right atany time, until a Mortgage Loan has been purchased by Takeout Investor, todemand the return of the related Mortgage Documents to Custodian, and [TakeoutInvestor/Bailee] agrees to return to Custodian the Mortgage Documentspertaining to a Mortgage Loan not purchased by Takeout Investor immediatelyupon such demand by Buyer.

 

The persons listed on theattached Schedule 2 are the authorized representatives (“AuthorizedRepresentatives”) of Buyer. [Takeout Investor/Bailee] shall not honor any communication from Sellersor any third party relating to a Mortgage Loan, which is not confirmed by thewritten or telephonic consent of an Authorized Representative of Buyer, oruntil Buyer has received the required amount of proceeds of the sale of suchMortgage Loan.

 

In the event [TakeoutInvestor/Bailee] is not able for any reason to comply with the terms of thisBailee Letter, [Takeout Investor/Bailee] shall immediately return theSubmission Package to Custodian at the above address.

 

*[Takeout Investor/Bailee]acknowledges that the Custodial File is being delivered in accordance with itsinstructions*. [Takeout Investor/Bailee] shall not deliver a Custodial File to anythird party without the prior written consent of Buyer unless such third partyis a wholly owned subsidiary of Takeout Investor or a custodian and bailee ofTakeout Investor who is receiving such Custodial File with written notice ofthe bailment created by this Master Bailee Letter.

 

*No deviation in performance of theterms of any previous bailment agreement will alter any of [TakeoutInvestor/Bailee’s] duties or responsibilities as provided herein.*

 

*By accepting delivery of a CustodialFile containing a Notice of Bailment, [Takeout Investor/Bailee] shall be boundby the terms hereof.  Please execute andreturn the enclosed copy of this Master Bailee Letter in the enclosedself-addressed envelope.*

 

 
|   | Sincerely,                                        |
|--------|---------------------------------------------------|
|   |                                              |
|   | MERRILL  LYNCH MORTGAGE CAPITAL    INC. |
|   |                                              |
|   |                                              |
|   | By:                                               |   |   |
|   |                                              | Name: |   |
|   |                                              | Title: |   |

 

The undersigned Custodianexecutes this Master Bailee Letter solely for purposes of appointing [TakeoutInvestor/Bailee] its custodian and bailee to hold the Custodial Files inaccordance with the terms of this Master Bailee Letter.

 

Exh. 13-2

----

 
|                       | Agreed to:                                         |
|----------------------------|----------------------------------------------------|
|                       |                                               |
|                       |                                               |
|                       | DEUTSCHE  BANK NATIONAL TRUST    COMPANY |
|                       |   (Custodian)                            |
|                       |                                               |
|                       |                                               |
|                       | By:                                                |   |   |
|                       |                                               | Name: |
|                       |                                               | Title: |
|                       |                                               | Dated:  As of the date first set forth above |
|                       |                                               |
|                       |                                               |
| Agreed to:                 |                                               |
|                       |                                               |
|                       |                                               |
| [Takeout  Investor/Bailee] |                                               |
|                       |                                               |
|                       |                                               |
| By:                        |                                               |   |   |
|                       | Name:                                              |   |
|                       | Title:                                             |   |
|                       | Dated:  As of the date first set forth above  |   |
|                            |                                                    |  |  |  |  |

 

Exh. 13-3

----

 

SCHEDULE 1TO EXHIBIT 13

 

NOTICE OF BAILMENT

 

[Address]

 

Re:                               [InsertDescription of Loan, including Borrower’s Name, Loan Amount and Loan Number]

 

Ladies and Gentlemen:

 

Pursuant to the MasterBailee Letter, dated                                 ,         (the “Master Bailee Letter”), between Merrill Lynch Mortgage CapitalInc. (“Buyer”) and Deutsche Bank National Trust Company (the “Custodian”),you are hereby notified that the enclosed original promissory note with respectto the referenced loan together with certain other documents comprising therelated file with respect to that loan (the “Mortgage Documents”) beinghereby delivered to you herewith are to be held by you as agent of Custodian(which holds the Mortgage Documents as custodian and bailee for the benefit ofBuyer).

 

Any Mortgage Documents(or portion thereof) not purchased by you in accordance with the provisions ofthe Applicable Requirements shall be sent to the Custodian by overnight courierto:  *[insert address for return of documents]*.

 

In the event you elect topurchase the Mortgages subject to the Master Bailee Letter, you shall pay theTakeout Price to the Buyer by wire transfer based upon the followinginstructions:

 
|   |   |   |
|--------|--------|--------|
|   | ABA#   |   |
|   | A/C#   |   |
|   |   |   |
|   | Attn:  |   |

 

Any questions relating tothe Mortgage Documents should be referred to the Buyer at(212)                 .

 

 
|   | Sincerely, |
|--------|------------|
|   |       |
|   |       |
|   | By:        |   |   |
|   |       | Name: |
|   |       | Title: |

 

Exh. 13-4

----

 

SCHEDULE 2TO EXHIBIT 13

 

AUTHORIZEDREPRESENTATIVES OF THE BUYER

 
| **Name**           |   | **Title**          |   | **Authorized  Signature** |
|--------------------|--------|--------------------|--------|---------------------------|
|               |   |               |   |                      |
| James Cason        |   | Director           |   |                      |
|               |   |               |   |                      |
| Joseph Magnus      |   | Director           |   |                      |
|               |   |               |   |                      |
| Joshua Green       |   | Director           |   |                      |
|               |   |               |   |                      |
| Gene Nagotko       |   | Vice President     |   |                      |
|               |   |               |   |                      |
| John  Winchester   |   | Director           |   |                      |
|               |   |               |   |                      |
| Christopher  Czako |   | Senior  Specialist |   |                      |
|               |   |               |   |                      |
| Lisa  Liao         |   | Specialist         |   |                      |
|               |   |               |   |                      |
| Michael  Saccento  |   | Specialist         |   |                      |

 

Exh. 13-5

----

 

EXHIBIT 14

 

FORM OF BAILEEVIOLATION LETTER

 

[Buyer][ADDRESS]

 

[Takeout Investor][ADDRESS]

 

RE:  [Reference applicable bailee letter (the “BaileeLetter”)]

 

We hereby notify youthat, pursuant to the Bailee Letter, the Mortgage Files for the Mortgage Loanslisted on Annex I hereto were released to [Takeout Investor/Bailee] (“TakeoutInvestor/Bailee”) for purchase on        , 200    and [Takeout Investor/Bailee] has had possession of the Mortgage Files for morethan thirty days without purchasing such Mortgage Loans.

 
| By:    | DEUTSCHE BANK NATIONAL

TRUST COMPANY |   |
|--------|---------------------------------------|--------|
|   |                                  |   |
|   |                                  |   |
|   | Name:                                 |   |   |   |
|   | Title:                                |   |   |   |
|        |                                       |        |  |  |  |

 

H-6

----

 

EXHIBIT 15

 

**FORM OF AMENDED AND RESTATED**

 

**SETTLEMENT ACCOUNT CONTROL AGREEMENT**

 

**AMENDED AND RESTATED SETTLEMENTACCOUNT CONTROL AGREEMENT**(this “Agreement”), dated asof August 4, 2004, between MERRILL LYNCH COMMERCIAL FINANCE CORP. (“MLMCI”and the “Buyer”), MORTGAGEIT, INC., (“MortgageIT” and a “Seller”),MORTGAGEIT HOLDINGS, INC., (“Holdings”, a “Seller”, andcollectively with MortgageIT, the “Sellers”), and DEUTSCHE BANK NATIONALTRUST COMPANY (the “Bank”).

 

Merrill Lynch CommercialFinance Corp. (“MLCFC”), MortgageIT and the Bank previously entered into a Settlement Account ControlAgreement, dated September 15, 2003, (the “Existing Settlement AccountControl Agreement”) and MLCFC subsequently assigned its rights as Buyerthereunder to MLMCI.

 

MLMCI, the Sellers and theBank have requested that the Existing Settlement Account Control Agreement beamended and restated on the terms and conditions set forth herein.

 

Accordingly, the partieshereby agree, in consideration of the mutual promises and mutual obligationsset forth herein, that the Existing Settlement Account Control Agreement ishereby amended and restated as set forth herein.

 

**WHEREAS**, theSellers and the Buyer have entered into that certain Amended and RestatedRepurchase Agreement, dated as of August 4, 2004 (as amended, the “RepurchaseAgreement”) pursuant to which the Buyer may enter into a Transactionsecured by, among other things, the Settlement Account (as defined below) andall amounts held therein;

 

**WHEREAS**, theSellers, the Buyer, and the Bank, as Custodian thereunder have entered intothat certain Amended and Restated Custodial Agreement, dated as of August 4,2004 (as amended, the “Custodial Agreement”);

 

**WHEREAS**, theSellers have established that certain Settlement Account, Acct. No. 38567,which is a segregated, non-interest bearing trust account, subject to thesecurity interest of the Buyer, ABA # 021001033, which account ismaintained in the name of the Sellers in trust for the Buyer with the Bankpursuant to the Custodial Agreement (the “Settlement Account”);

 

**WHEREAS**, pursuantto the Custodial Agreement, the Sellers shall cause the applicable TakeoutInvestor to remit all amounts on account of the related Mortgage Loans to theSettlement Account in accordance with the provisions of the related TakeoutCommitment; and

 

**WHEREAS**, theSellers have granted to the Buyer a security interest in the Settlement Accountand all amounts held therein;

 

----

 

**NOW,THEREFORE**, the parties hereby agree as follows:

 

(a)                                  CapitalizedTerms.  Capitalized terms used butnot defined herein shall have the meanings assigned in the Custodial Agreementor the Repurchase Agreement, as applicable.

 

(b)                                 TransfersTo and From Settlement Account; Control. The parties agree that, with respect to a Takeout Commitment:  (a) on or before the AnticipatedSettlement Date, the Sellers shall provide to the Bank instructions, with therelated security release attached thereto, specifying the amount that the Bankshall credit to the account of the Buyer specified in Written Instructions fromBuyer from time to time, (b) immediately upon receipt of such instructionsand such amount, the Bank shall credit such amount (or, to the extent that theamount indicated in Sellers’ instructions is less than the amount set forth inthe attached security release and such amount set forth in such securityrelease is received by the Bank, the amount set forth in such security release)to such Buyer’s account; (c) except as described in clause (d) below,the Bank shall transfer the remainder of all amounts that the Bank receives inrespect of such Takeout Commitment as instructed by the Sellers in writing; and(d) the Bank shall transfer funds from the Settlement Account inaccordance with such instructions until the Bank receives notice from the Buyerthat an event of default has occurred and is continuing under the RepurchaseAgreement (a “Notice of Event of Default”); and (e) upon the Bank’sreceipt of a Notice of Event of Default, the Bank shall (i) in no event(A) transfer funds from the Settlement Account to the Sellers,(B) act on the instruction of the Sellers (unless the Buyer so directs),or (C) cause or permit withdrawals from the Settlement Account in anymanner not approved by the Buyer in writing and (ii) comply withinstructions originated by the Buyer concerning the disposition of funds in theSettlement Account without further consent of the Sellers.  With respect to a Takeout Commitment, to theextent that the amount indicated in Sellers’ instructions is less than theamount set forth in the attached security release and the Bank receives lessthan the amount set forth in such security release, the Bank shall provide tothe Buyer prompt written notice thereof. Funds in the Settlement Account shall be held uninvested.  In no event shall the Bank have a duty toreview or verify wire instructions, unless expressly stated herein.

 

(c)                                  SettlementAccount.  The Bank hereby confirmsand agrees that:

 

(i)                                                        TheBank shall not change the name or account number of the Settlement Accountwithout the prior written consent of the Buyer;

 

(ii)                                                     TheSettlement Account is a “deposit account” (within the meaning of Section 9-102(a)(29)of the Uniform Commercial Code (the “UCC”));

 

(iii)                                                  Withoutlimitation on the Buyer’s rights under Section 2 above, the Bank shallcomply with any stop payment orders given by the Buyer after receipt by Bank ofa Notice of Event of Default with respect to items presented for payment by theSeller;

 

(iv)                                                 Exceptfor the Custodial Agreement, there are no other agreements entered into betweenthe Bank and the Seller with respect to the Settlement Account;

 

(v)                                                    Ithas not entered into, and until the termination of this Agreement will notenter into, any agreement with any other person relating to the SettlementAccount and/or any

 

2

----

 

funds held thereinpursuant to which it has agreed, or will agree, to comply with orders orinstructions of such other person; and

 

(vi)                                                 Ithas not entered into, and until the termination of this Agreement will notenter into, any agreement with the Seller purporting to limit or condition theobligation of the Bank to comply with orders and other instructions of theBuyer as set forth in Sections 2(c)(ii) and 3(c) above.

 

(d)                                 Subordinationof Lien; Waiver of Set-Off. (i)  In the event that the Bank has or subsequently obtains byagreement, by operation of law or otherwise a security interest in theSettlement Account or any funds held therein, the Bank hereby agrees that suchsecurity interest shall be subordinate to the security interest of theBuyer.  The funds and other itemsdeposited to the Settlement Account will not be subject to deduction, set-off,banker’s lien, or any other right in favor of any person other than the Buyer(except that the Bank may set off (i) all amounts due to the Bank inrespect of customary fees and expenses for the routine maintenance andoperation of the Settlement Account and (ii) the face amount of any checkswhich have been credited to the Settlement Account but are subsequentlyreturned unpaid because of uncollected or insufficient funds, or(iii) other returned items or mistakes made in crediting the SettlementAccount).

 

(ii)                                                     TheSellers hereby authorize the Bank, without prior notice, from time to time todebit any other account the Sellers may have with the Bank for the amount duethe Bank hereunder.

 

**(e)****                                  CHOICEOF LAW.  THIS AGREEMENT SHALL BEGOVERNED BY THE LAWS OF THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THEUCC, NEW YORK SHALL BE DEEMED TO BE THE “BANK’S JURISDICTION.”**

 

(f)                                    Conflictwith Other Agreements. (i)  In the event of any conflict between this Agreement (orany portion thereof) and any other agreement between the Sellers and the Banknow existing or hereafter entered into, the terms of this Agreement shallprevail.

 

(ii)                                                     Noamendment or modification of this Agreement or waiver of any right hereundershall be binding on any party hereto unless it is in writing and is signed byall of the parties hereto.

 

(g)                                 AdverseClaims.  Except for the claims andinterest of the Buyer and of the Sellers in the Settlement Account, the Bankdoes not have actual knowledge of any claim to, or interest in, the SettlementAccount or in funds held therein.  Ifany person asserts any lien, encumbrance or adverse claim (including any writ,garnishment, judgment, warrant of attachment, execution or similar process)against the Settlement Account or against any funds held therein, and aResponsible Officer of the Bank is notified in writing, the Bank will promptlynotify the Buyer and the Sellers thereof. For purposes of this Section 7, a “Responsible Officer” shall mean,with respect to the Bank, any officer, including any managing director,principal, vice president, assistant vice president, assistant treasurer,assistant secretary, trust officer or any other officer of the Bank customarilyperforming functions similar to those performed by any of

 

3

----

 

the above designatedofficers and having direct responsibility for the administration of thisAgreement, and also, with respect to a particular matter, any other officer, towhom such matter is referred because of such officer’s knowledge of andfamiliarity with the particular subject.

 

(h)                                 Successors.  The terms of this Agreement shall be bindingupon, and shall inure to the benefit of, the parties hereto and theirrespective corporate successors or heirs and personal representatives whoobtain such rights solely by operation of law.

 

(i)                                     Notices.  Any notice, request or other communicationrequired or permitted to be given under this Agreement shall be in writing anddeemed, to have been properly given when delivered in person, or when sent bytelecopy or other electronic means and electronic confirmation of error freereceipt is received, or three days after being sent by certified or registered UnitedStates mail, return receipt requested, postage prepaid, addressed to the partyat the address set forth below:

 
| Seller:                                        |                                 |
|------------------------------------------------|--------------------------------------|
|                                           |                                 |
|                                           | MortgageIT, Inc.                     |
|                                           | 33 Maiden Lane                       |
|                                           | 6th Floor                            |
|                                           | New York, New York  10038            |
|                                           | Attention: Chief  Operating Officer  |
|                                           | Telephone: (212)  651-4961           |
|                                           | Facsimile: (212)  651-4680           |
|                                           |                                 |
| Seller:                                        |                                 |
|                                           |                                 |
|                                           | MortgageIT Holdings,  Inc.           |
|                                           | 33 Maiden Lane                       |
|                                           | 6th Floor                            |
|                                           | New York, New York  10038            |
|                                           | Attention: Chief  Operating Officer  |
|                                           | Telephone: (212)  651-4961           |
|                                           | Facsimile: (212)  651-4680           |
|                                           |                                 |
| with copies to the  Buyer at the address below |
|                                           |
| Buyer:                                         |                                 |
|                                           |                                 |
|                                           | Merrill Lynch Mortgage  Capital Inc. |
|                                           | 4 World Financial  Center            |
|                                           | 10th Floor                           |
|                                           | New York, New York  10080            |
|                                           | Attention: James Cason               |

 

4

----

 
| Bank:  |                                     |
|--------|------------------------------------------|
|   |                                     |
|   | Deutsche Bank National  Trust Company    |
|   | 1761 East St. Andrew  Place              |
|   | Santa Ana, California  92705             |
|   | Attention:  Mortgage Custody-MG030C |
|   | Telephone: (714)  247-6000               |
|   | Facsimile: (714)  247-6082               |

 

Any party may change itsaddress for notices in the manner set forth above.

 

(j)                                     Termination.  The obligations of the Bank to the Buyerpursuant to this Agreement shall continue in effect until the Buyer hasnotified the Bank of such termination in writing.  The Buyer agrees with the Sellers to provide Notice ofTermination in substantially the form of Exhibit A hereto to theBank on or after the termination of the Buyer’s security interest in theSettlement Account pursuant to, or as otherwise provided by, the terms of theRepurchase Agreement.

 

(k)                                  Limitationof Liability; Indemnification of the Bank. The Sellers and the Buyer hereby agree that (a) the Bank isreleased from any and all liabilities to the Sellers and the Buyer arising fromthe terms of this Agreement and the compliance of the Bank with the termshereof, except to the extent that such liabilities arise from the Bank’s badfaith, willful misconduct or negligence and (b) the Sellers, jointly andseverally, their successors and assigns shall at all times indemnify and saveharmless the Bank from and against any loss, liability or expense incurredwithout bad faith, willful misconduct or negligence on the part of the Bank,its officers, directors and agents, arising out of or in connection with theexecution and performance of this Agreement or the maintenance of the SettlementAccount, including the costs and expenses of defending themselves against anyclaim or liability in connection with the performance of any of their powers orduties hereunder, which indemnity shall survive the termination of thisAgreement or the earlier removal or resignation of the Bank.  The Bank shall also be afforded the samerights and protections afforded to Deutsche Bank National Trust Company in itsrole as Custodian under the Custodial Agreement, as if such rights andprotections were fully set forth herein.

 

(l)                                     Counterparts.  This Agreement may be executed may beexecuted in any number of counterparts, all of which shall constitute one andthe same instrument, and any party hereto may execute this Agreement by signingand delivering one or more counterparts.

 

[SIGNATURE PAGESFOLLOW]

 

5

----

 

**IN WITNESS WHEREOF**,the parties hereto have duly executed and delivered this Agreement, all as ofthe day and year first above written.

 

 
|   | MORTGAGEIT, INC., as Seller                                 |
|--------|-------------------------------------------------------------|
|   |                                                        |
|   |                                                        |
|   | By:                                                         | /s/ JOHN R. CUTI |   |
|   |                                                        | Name: John R. Cuti |   |
|   |                                                        | Title: Secretary |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | MORTGAGEIT HOLDINGS,  INC., as Seller                       |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | By:                                                         | /s/ JOHN R. CUTI |   |
|   |                                                        | Name: John R. Cuti |   |
|   |                                                        | Title: Secretary |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | MERRILL  LYNCH MORTGAGE CAPITAL    INC., as Buyer |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | By:                                                         | /s/ JOHN WINCHESTER |   |
|   |                                                        | Name: John Winchester |   |
|   |                                                        | Title: Vice President |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | DEUTSCHE  BANK NATIONAL TRUST    COMPANY, as Bank |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | By:                                                         | /s/ CHRISTOPHER CORCORAN |   |
|   |                                                        | Name: Christopher  Corcoran |   |
|   |                                                        | Title: Assistant Vice  President |   |
|   |                                                        |   |   |
|   |                                                        |   |   |
|   | By:                                                         | /s/ KEVIN R. FISCHER |   |
|   |                                                        | Name: Kevin R. Fischer |   |
|   |                                                        | Title: Vice President |   |

 

----

 

Exhibit A toSettlement Account Control Agreement

 

[LETTERHEAD OFMERRILL LYNCH MORTGAGE CAPITAL INC.]

 

[Date]

 

Deutsche Bank National Trust Company1761 East St. Andrew PlaceSanta Ana, California 92705Attention:  Mortgage Custody-MG030CFacsimile: (714) 247-6082

 

Re:                               Noticeof Termination of Amended and Restated Settlement Account Control Agreement

 

You are hereby notifiedthat the Amended and Restated Settlement Account Control Agreement, dated as ofAugust 4, 2004, a copy of which is attached (the “Agreement”),among you, the undersigned, MortgageIT, Inc., (“MortgageIT” and a “Seller”)and MortgageIT Holdings, Inc., (a “Seller”, and collectively withMortgageIT, the “Sellers”) is terminated and you have no furtherobligations to the undersigned pursuant to the Agreement.  Notwithstanding any previous instructions toyou, you are hereby instructed to accept all future directions with respect to theSettlement Account from the Sellers. This notice terminates any obligations you may have to the undersignedwith respect to the Settlement Account; provided, however, that nothingcontained in this notice shall alter any obligations which you may otherwiseowe to the undersigned pursuant to any other agreement.

 

 
|   | Very truly yours,                                 |
|--------|---------------------------------------------------|
|   |                                              |
|   |                                              |
|   | MERRILL  LYNCH MORTGAGE CAPITAL    INC. |
|   |                                              |
|   |                                              |
|   | By:                                               |   |   |
|   |                                              | Name: |
|   |                                              | Title: |

 

Exhibit A-1

----