Exhibit 99.4
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EXECUTION COPY
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
Purchaser
GMAC MORTGAGE CORPORATION,
Servicer
LASALLE BANK NATIONAL ASSOCIATION,
Trustee
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
Master Servicer and Securities Administrator
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
Custodian
____________________________
CUSTODIAL AGREEMENT
As of July 1, 2006
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2006-11
____________________________
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TABLE OF CONTENTS
Section 1. Definitions.....................................................2
Section 2. Delivery of Custodial Files.....................................7
Section 3. [Reserved.]....................................................11
Section 4. Obligations of the Custodian...................................11
Section 5. Trust Receipt..................................................12
Section 6. Future Defects.................................................13
Section 7. Release for Servicing..........................................13
Section 8. Limitation on Release..........................................13
Section 9. Release for Payment............................................14
Section 10. Fees of Custodian..............................................14
Section 11. Removal of Custodian...........................................14
Section 12. Transfer of Custodial Files Upon Termination...................14
Section 13. Examination of Custodial Files.................................15
Section 14. Insurance of Custodian.........................................15
Section 15. Counterparts...................................................15
Section 16. Reserved.......................................................15
Section 17. Governing Law..................................................15
Section 18. Copies of Mortgage Documents...................................15
Section 19. No Adverse Interest of Custodian...............................16
Section 20. Termination by Custodian.......................................16
Section 21. Entire Agreement; Severability.................................16
Section 22. Term of Agreement..............................................16
Section 23. Notices........................................................16
Section 24. Successors and Assigns.........................................17
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Section 25. Indemnification................................................17
Section 26. Indemnification of Custodian...................................17
Section 27. Reliance of Custodian..........................................18
Section 28. Obligations of the Custodian With Respect
to the Trust Receipt...........................................18
Section 29. Transmission of Custodial Files................................19
Section 30. Authorized Representatives.....................................20
Section 31. Reproduction of Documents......................................20
Section 32. Compliance with Regulation AB..................................20
Section 33. Waiver of Trial by Jury........................................23
Section 34. Submission To Jurisdiction; Waivers............................23
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EXHIBITS
EXHIBIT 1 REVIEW PROCEDURES
EXHIBIT 2 FORM OF TRUST RECEIPT
EXHIBIT 3 FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
EXHIBIT 4 FORM OF OPINION OF COUNSEL TO THE CUSTODIAN
EXHIBIT 5 FORM OF LOST NOTE AFFIDAVIT
EXHIBIT 6 AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
EXHIBIT 7 AUTHORIZED REPRESENTATIVES OF THE PURCHASER
EXHIBIT 8 AUTHORIZED REPRESENTATIVES OF THE SERVICER
EXHIBIT 9 FORM OF NOTICE TO CUSTODIAN
EXHIBIT 10 FORM OF AMENDMENT AND JOINDER
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THIS CUSTODIAL AGREEMENT, dated as of July 1, 2006
("Custodial Agreement" or "Agreement"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Capital Inc., a New York corporation, having an address at 1221 Avenue of the
Americas, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Purchaser"), GMAC
Mortgage Corporation, a Pennsylvania corporation having an office at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Servicer"), ▇▇▇▇▇ Fargo Bank,
National Association, having an address at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (in such capacity, the "Master Servicer" and the "Securities
Administrator"), LaSalle Bank National Association having an address at ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Trustee") and
Deutsche Bank Trust Company Americas, a New York banking corporation having an
address at ▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the
"Custodian");
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Purchaser has purchased from Sovereign Bank
(the "Seller") and the Seller has sold to the Purchaser, certain mortgage
loans specified on Exhibit 10 hereto (the "Mortgage Loans"), pursuant to the
terms and conditions of (i) that certain Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006 between the Seller and the Purchaser (the
"Purchase Agreement");and (ii) the Mortgage Loans are being serviced by the
Servicer pursuant to that certain First Amended and Restated Servicing
Agreement, dated as of January 1, 2006 between the Servicer and the Purchaser,
as amended by the Assignment Assumption and Recognition Agreement dated as of
July 1, 2006 (the "Servicing Agreement" and together with the Purchase
Agreement, the "Sale and Servicing Agreements")
WHEREAS, the Mortgage Loans purchased pursuant to the
Purchase Agreement are being held by the Custodian as custodian for the
Purchaser pursuant to the custody agreement referenced in the Purchase
Agreement (the "Custody Agreement");
WHEREAS, the Mortgage Loans have been transferred to ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Capital I Inc. (the "Depositor") pursuant to an Assignment, Assumption
and Recognition Agreement, dated as of July 1, 2006, among the Seller, the
Servicer, the Depositor, the Purchaser, the Master Servicer and the Trustee;
WHEREAS, the Mortgage Loans have been transferred to the
Trustee on behalf of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Loan Trust 2006-11 (the
"Trust") pursuant to the Pooling and Servicing Agreement dated as of July 1,
2006 (the "PSA"), among the Depositor, the Master Servicer, the Securities
Administrator and the Trustee;
WHEREAS, the Mortgage Loans will be master serviced by the
Master Servicer pursuant to the PSA and serviced by the Servicer pursuant to
the Servicing Agreement;
WHEREAS, the Purchaser has requested the Custodian to act as
custodian on behalf of the Trust for purposes of holding the Mortgage Loans;
WHEREAS, the Trustee, on behalf of the Trust, desires to
have the Custodian take possession of the mortgage and mortgage notes
(collectively, the "Mortgage Notes") for the Mortgage Loans, along with
certain other documents specified herein, as the bailee of, and custodian for
the Mortgage Loans, in accordance with the terms and conditions hereof; and
NOW, THEREFORE, in consideration of the mutual undertakings
herein expressed, the parties hereto hereby agree as follows:
Section 1. Definitions.
For purposes of this Agreement the following capitalized
terms shall have the respective meanings set forth below.
Adjustable Rate Mortgage Loan: An adjustable rate Mortgage
Loan purchased pursuant to the Purchase Agreement.
Affiliate: With respect to any specified Person, any other
Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Agreement: This Custodial Agreement and all amendments and
attachments hereto and supplements hereof.
Amendment and Joinder: The agreement pursuant to which the
Servicer, shall become a party hereto as if such party were an original
signatory hereto, in the form attached as Exhibit 10.
Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Mortgage Loan as the value of
the Mortgaged Property.
Assignment of Mortgage: An assignment of the Mortgage,
notice of transfer or equivalent instrument in recordable form, sufficient
under the laws of the jurisdiction wherein the related Mortgaged Property is
located to reflect the sale of the Mortgage to the Purchaser.
Balloon Mortgage Loan: Any Mortgage Loan which by its
original terms or any modifications thereof provides for amortization beyond
its scheduled maturity date.
Business Day: Any day other than (i) a Saturday or Sunday,
or (ii) a day on which banking and savings and loan institutions in (a) the
States of New York, Maryland or California, (b) the state in which the
Servicer's servicing operations are located or (c) the state in which the
Custodian's operations are located, are authorized or obligated by law or
executive order to be closed.
Closing Date: July 31, 2006.
CLTV: As of any date and as to any Second Lien Loan, the
ratio, expressed as a percentage, of the (a) sum of (i) the outstanding
principal balance of the Second Lien Loan and (ii) the outstanding principal
balance as of such date of any mortgage loan or mortgage loans that are senior
or equal in priority to the Second Lien Loan and which are secured by the same
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Mortgaged Property to (b) the Appraised Value of the related Mortgaged
Property as of the origination of the Second Lien Loan.
Co-op: A private, cooperative housing corporation, having
only one class of stock outstanding, which owns or leases land and all or part
of a building or buildings, including apartments, spaces used for commercial
purposes and common areas therein and whose board of directors authorizes the
sale of stock and the issuance of a Co-op Lease.
Co-op Lease: With respect to a Co-op Loan, the lease with
respect to a dwelling unit occupied by the Mortgagor and relating to the stock
allocated to the related dwelling unit.
Co-op Loan: A Mortgage Loan secured by the pledge of stock
allocated to a dwelling unit in a residential cooperative housing corporation
and a collateral assignment of the related Co-op Lease.
Custodian: Deutsche Bank Trust Company Americas, a New York
banking corporation and its successor in interest, or any successor to the
Custodian under this Agreement as herein provided.
Custodial File: As to each Mortgage Loan, any mortgage loan
documents which are delivered to the Custodian or which at any time come into
the possession of the Custodian.
Cut-off Date: July 1, 2006.
Due Date: The day of the month on which the Monthly Payment
is due on a Mortgage Loan, exclusive of any days of grace.
Electronic Transmission: In connection with any Request for
Release, the delivery of such information in an electronic format acceptable
to the applicable recipient thereof. An Electronic Transmission shall be
considered written notice under Sections 7, 8 and 9 hereof.
Exception: With respect to any Mortgage Loan, any variances
from the delivery requirements set forth hereunder with respect to the
Custodial Files.
FHA Approved Mortgagee: A corporation or institution
approved as a mortgagee by the FHA under the Act, and applicable HUD
regulations, and eligible to own and service mortgage loans such as the FHA
mortgage loans.
First Lien Loan: A Mortgage Loan secured by a first lien
Mortgage on the related Mortgaged Property.
Gross Margin: With respect to each Adjustable Rate Mortgage
Loan, the fixed percentage amount set forth in the related Mortgage Note which
amount is added to the Index in accordance with the terms of the related
Mortgage Note to determine on each Interest Rate Adjustment Date the Mortgage
Interest Rate for such Mortgage Loan.
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High Cost Loan: A Mortgage Loan (a) covered by the Home
Ownership and Equity Protection Act of 1994, (b) classified as a "high cost
home," "threshold," "covered," "high risk home," or "predatory" loan under any
other applicable federal, state or local law (or a similarly classified loan
using different terminology under a law imposing heightened regulatory
scrutiny or additional legal liability for residential mortgage loans having
high interest rates, points and/or fees) or (c) categorized as High Cost
pursuant to Appendix E of Standard & Poor's Glossary. For avoidance of doubt,
the parties agree that this definition shall apply to any law regardless of
whether such law is presently, or in the future becomes, the subject of
judicial review or litigation.
Index: The index indicated in the related Mortgage Note for
each Adjustable Rate Mortgage Loan.
Interest Rate Adjustment Date: With respect to each
Adjustable Rate Mortgage Loan, the date, specified in the related Mortgage
Note and the related Mortgage Loan Schedule, on which the Mortgage Interest
Rate is adjusted.
Interim Funder: With respect to each MERS Designated
Mortgage Loan, the Person named on the MERS System as the interim funder
pursuant to the MERS Procedures Manual.
Lifetime Rate Cap: The provision of each Mortgage Note
related to an Adjustable Rate Mortgage Loan which provides for an absolute
maximum Mortgage Interest Rate thereunder. The Mortgage Interest Rate during
the terms of each Adjustable Rate Mortgage Loan shall not at any time exceed
the Mortgage Interest Rate at the time of origination of such Adjustable Rate
Mortgage Loan by more than the Lifetime Rate Cap set forth as an amount per
annum on the related Mortgage Loan Schedule.
Loan-to-Value Ratio or LTV: With respect to any Mortgage
Loan, the ratio (expressed as a percentage) of the outstanding principal
amount of the Mortgage Loan as of the Cut-off Date (unless otherwise
indicated), to the lesser of (a) the Appraised Value of the Mortgaged Property
at origination and (b) if the Mortgage Loan was made to finance the
acquisition of the related Mortgaged Property, the purchase price of the
Mortgaged Property.
MERS: Mortgage Electronic Registration Systems, Inc., a
Delaware corporation, and its successors in interest.
MERS Designated Mortgage Loan: Any Mortgage Loans for which
(a) the applicable Seller has designated or will designate MERS as, and has
taken or will take such action as is necessary to cause MERS to be, the
mortgagee of record, as nominee for such Seller, in accordance with MERS
Procedure Manual, (b) such Seller has designated or will designate the
Purchaser as the Investor on the MERS(R) System, (c) such Seller has
designated or will designate the Servicer as the servicer on the MERS(R)
System and (d) such Seller has designated or will designate the Custodian as
the Custodian on the MERS(R) System.
MERS Identification Number: The eighteen digit number
permanently assigned to each MERS Designated Mortgage Loan.
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MERS Procedures Manual: The MERS Procedures Manual, as it
may be amended, supplemented or otherwise modified from time to time.
MERS Report: The report from the MERS System listing MERS
Designated Mortgage Loans and other information.
MERS(R) System: MERS electronic registry system, as more
particularly described in the MERS Procedure Manual.
Monthly Payment: The scheduled monthly payment of principal
and interest on a Mortgage Loan.
Mortgage: With respect to a Mortgage Loan that is not a
Co-op Loan, the mortgage, deed of trust or other instrument securing a
Mortgage Note, which creates a first lien, in the case of a First Lien Loan,
or a second lien, in the case of a Second Lien Loan, on an unsubordinated
estate in fee simple in real property securing the Mortgage Note; except that
with respect to real property located in jurisdictions in which the use of
leasehold estates for residential properties is a widely-accepted practice,
the mortgage, deed of trust or other instrument securing the Mortgage Note may
secure and create a first lien in the case of a First Lien Loan, and with
respect to a Second Lien Loan, a second lien, in each case, upon a leasehold
estate of the Mortgagor. With respect to a Co-op Loan, the Security Agreement.
Mortgage Interest Rate: The annual rate of interest borne on
a Mortgage Note with respect to each Mortgage Loan in effect from time to
time.
Mortgage Loan Package: One or more Mortgage Loans, which are
purchased by the Purchaser from a Seller on the Closing Date.
Mortgage Loan Schedule: The schedule of Mortgage Loans
setting forth the following information with respect to each Mortgage Loan in
the related Mortgage Loan Package: (1) the Mortgage Loan identifying number;
(2) the Mortgagor's name; (3) the street address of the Mortgaged Property
including the city, state and zip code; (4) a code indicating whether the
Mortgaged Property is owner-occupied; (5) the number and type of residential
units constituting the Mortgaged Property; (6) the original months to maturity
or the remaining months to maturity from the Cut-off Date, in any case based
on the original amortization schedule and, if different, the maturity
expressed in the same manner but based on the actual amortization schedule;
(7) with respect to each First Lien Loan, the Loan-to-Value Ratio at
origination, and with respect to each Second Lien Loan, the CLTV at
origination; (8) the Mortgage Interest Rate as of the Cut-off Date; (9) the
date on which the Monthly Payment was due on the Mortgage Loan and, if such
date is not consistent with the Due Date currently in effect, such Due Date;
(10) the stated maturity date; (11) the amount of the Monthly Payment as of
the Cut-off Date; (12) the last payment date on which a payment was actually
applied to the outstanding principal balance; (13) the original principal
amount of the Mortgage Loan; (14) the principal balance of the Mortgage Loan
as of the close of business on the Cut-off Date, after deduction of payments
of principal due and collected on or before the Cut-off Date; (15) with
respect to each Adjustable Rate Mortgage Loan, the Interest Rate Adjustment
Date; (16) with respect to each Adjustable Rate Mortgage Loan, the Gross
Margin; (17) with respect to each Adjustable Rate Mortgage
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Loan, the Lifetime Rate Cap under the terms of the Mortgage Note; (18) with
respect to each Adjustable Rate Mortgage Loan, a code indicating the type of
Index; (19) the type of Mortgage Loan (i.e., Fixed or Adjustable Rate Mortgage
Loan, First or Second Lien Loan); (20) a code indicating the purpose of the
loan (i.e., purchase, rate and term refinance, equity take-out refinance);
(21) a code indicating the documentation style (i.e., full, alternative or
reduced); (22) the loan credit classification (as described in the related
Purchase Agreement); (23) a code indicating whether such Mortgage Loan
provides for a prepayment penalty and, if applicable, the prepayment penalty
period; (24) the Mortgage Interest Rate as of origination; (25) the credit
score; (26) the date of origination; (27) with respect to Adjustable Rate
Mortgage Loans, the Mortgage Interest Rate adjustment period; (28) with
respect to each Adjustable Rate Mortgage Loan, the Mortgage Interest Rate
adjustment percentage; (29) with respect to each Adjustable Rate Mortgage
Loan, the Mortgage Interest Rate floor; (30) with respect to each Adjustable
Rate Mortgage Loan, the Mortgage Interest Rate Cap as of the first Interest
Rate Adjustment Date; (31) a code indicating whether the Mortgage Loan is a
High Cost Loan; (32) a code indicating whether the Mortgage Loan is a Balloon
Mortgage Loan; (33) the Due Date for the first Monthly Payment; (34) the
original Monthly Payment due; (35) with respect to the related Mortgagor, the
debt-to-income ratio; and (36) the MERS Identification Number, if any. With
respect to the Mortgage Loans in the aggregate, the Mortgage Loan Schedule
shall set forth the following information, as of the Cut-off Date: (1) the
number of Mortgage Loans; (2) the current aggregate outstanding principal
balance of the Mortgage Loans; (3) the weighted average Mortgage Interest Rate
of the Mortgage Loans; (4) the weighted average maturity of the Mortgage
Loans; (5) the Cut-off Date; and (6) the Closing Date.
Mortgage Loan Schedule and Exception Report: A list of
Mortgage Loans delivered by the Purchaser or its designee to the Custodian on
or before the Closing Date, reflecting the Mortgage Loans held by Custodian
for the benefit of the Purchaser, which includes any Exceptions with respect
to each Mortgage Loan listed thereon. Each Mortgage Loan Schedule and
Exception Report shall set forth (a) the Mortgage Loans sold to Purchaser on
the Closing Date as well as the Mortgage Loans previously sold to Purchaser
and held by Custodian hereunder, and (b) all Exceptions with respect thereto,
with any updates thereto from the time last delivered.
Mortgage Note: The note or other evidence of the
indebtedness of a Mortgagor secured by a Mortgage.
Mortgaged Property: With respect to a Mortgage Loan that is
not a Co-op Loan, the real property (or leasehold estate, if applicable)
securing repayment of the debt evidenced by the related Mortgage Note. With
respect to a Co-op Loan, the stock allocated to a dwelling unit in the
residential cooperative housing corporation that was pledged to secure such
Co-op Loan and the related Co-op Lease.
Notice of Approved Servicer: A Notice of Approved Servicer
in the form of Exhibit 12 hereto.
Person: Any individual, corporation, partnership, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof.
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Preliminary Mortgage Loan Schedule and Exception Report:
A list of Mortgage Loans delivered by the Purchaser or its designee to the
Custodian on any date as provided herein, reflecting the Mortgage Loans that
the Purchaser is considering purchasing from the Seller, which includes any
Exceptions with respect to each Mortgage Loan listed thereon.
Purchase Agreement: The Mortgage Loan Purchase and Warranties
Agreement, dated as of June 1, 2006 between the Seller and the Purchaser.
Purchaser: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., a New York
corporation, and its successor in interest and assigns.
Request for Release: As defined in Section 7 hereof.
Second Lien Loan: A Mortgage Loan secured by a second lien
Mortgage on the related Mortgaged Property.
Security Agreement: The agreement creating a security
interest in the stock allocated to a dwelling unit in the residential
cooperative housing corporation that was pledged to secure such Co-op Loan and
the related Co-op Lease.
Seller: Sovereign Bank, a federal savings bank, having an
address at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Seller Guide: The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Seller Guide relating to
the Purchaser's conduit mortgage loan purchase program, as such Guide may be
amended, supplemented or otherwise modified and in effect from time to time.
Servicer: GMAC Mortgage Corporation, a Pennsylvania
corporation having an office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Servicing Agreement: The First Amended and Restated Servicing
Agreement, dated as of January 1, 2006 between the Servicer and the Purchaser,
as amended by the Assignment Assumption and Recognition Agreement dated as of
July 1, 2006
Standard & Poor's: Standard & Poor's Ratings Services, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies Inc., and any successor thereto.
Standard & Poor's Glossary: The Standard & Poor's LEVELS(R)
Glossary, as may be in effect from time to time.
Trust Receipt: A final trust receipt as to each Mortgage
Loan, which Trust Receipt is delivered to the Purchaser by the Custodian in
the form annexed hereto as Exhibit 2.
VA Approved Lender: Those lenders which are approved by the
VA to act as a lender in connection with the origination of VA mortgage loans.
Section 2. Delivery of Custodial Files.
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No later than the Closing Date, the Purchaser or its
designee shall deliver to the Custodian a copy of the related Mortgage Loan
Schedule in an electronic, machine readable medium on a form mutually
acceptable to the Purchaser and the Custodian. In addition, no later than the
Closing Date the Seller or its designee shall deliver to the Custodian the
following original documents pertaining to each of the Mortgage Loans
identified in the related Mortgage Loan Schedule:
(a) the original Mortgage Note bearing all intervening
endorsements, endorsed "Pay to the order of _________, without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
officer. To the extent that there is no room on the face of the Mortgage Notes
for endorsements, the endorsement may be contained on an allonge, unless state
law does not so allow and the Custodian is so advised by the Seller that state
law does not so allow. If the Mortgage Loan was acquired by the Seller in a
merger, the endorsement must be by "[Last Endorsee], successor by merger to
[name of predecessor]". If the Mortgage Loan was acquired or originated by the
Last Endorsee while doing business under another name (as the Custodian is
notified in writing), the endorsement must be by "[Last Endorsee], formerly
known as [previous name]";
(b) the original of any guarantee executed in connection
with the Mortgage Note;
(c) with respect to Mortgage Loans that are not Co-op Loans,
the original Mortgage with evidence of recording thereon. With respect to any
Co-op Loan, an original or copy of the Security Agreement. If in connection
with any Mortgage Loan, the Seller cannot deliver or cause to be delivered the
original Mortgage with evidence of recording thereon on or prior to the
Closing Date because of a delay caused by the public recording office where
such Mortgage has been delivered for recordation or because such Mortgage has
been lost or because such public recording office retains the original
recorded Mortgage, the Seller shall deliver or cause to be delivered to the
Custodian, a photocopy of such Mortgage, together with (i) in the case of a
delay caused by the public recording office, certified by the Seller or
Servicer (or certified by the title company, escrow agent, or closing
attorney) stating that such Mortgage has been dispatched to the appropriate
public recording office for recordation and that the original recorded
Mortgage or a copy of such Mortgage certified by such public recording office
to be a true and complete copy of the original recorded Mortgage will be
promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of a Mortgage where a public recording office retains the
original recorded Mortgage or in the case where a Mortgage is lost after
recordation in a public recording office, a copy of such Mortgage certified by
such public recording office to be a true and complete copy of the original
recorded Mortgage;
(d) the originals of all assumption, modification,
consolidation or extension agreements, if any, with evidence of recording
thereon;
(e) with respect to Mortgage Loans that are not Co-op Loans,
the original Assignment of Mortgage for each Mortgage Loan, in form and
substance acceptable for recording (except with respect to MERS Designated
Loans). The Assignment of Mortgage must be duly recorded only if recordation
is either necessary under applicable law or commonly required by private
institutional mortgage investors in the area where the Mortgaged Property is
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located or on direction of the Purchaser as provided in this Agreement. If the
Assignment of Mortgage is to be recorded, the Mortgage shall be assigned to
the Trustee on behalf of the Trust. If the Assignment of Mortgage is not to be
recorded, the Assignment of Mortgage shall be delivered in blank. If the
Mortgage Loan was acquired by the Seller in a merger (as the Custodian is
notified in writing), the Assignment of Mortgage must be made by "[Seller],
successor by merger to [name of predecessor]". If the Mortgage Loan was
acquired or originated by the Seller while doing business under another name
(as the Custodian is notified in writing), the Assignment of Mortgage must be
by "[Seller], formerly known as [previous name]";
(f) with respect to Mortgage Loans that are not Co-op Loans,
the originals of all intervening assignments of mortgage (if any) evidencing a
complete chain of assignment from the Seller to the Last Endorsee (or, in the
case of a MERS Designated Loan, MERS) with evidence of recording thereon, or
if any such intervening assignment has not been returned from the applicable
recording office or has been lost or if such public recording office retains
the original recorded assignments of mortgage, the Seller shall deliver or
cause to be delivered to the Custodian, a photocopy of such intervening
assignment, together with (i) in the case of a delay caused by the public
recording office, certified by the Seller or Servicer (or certified by the
title company, escrow agent, or closing attorney) stating that such
intervening assignment of mortgage has been dispatched to the appropriate
public recording office for recordation and that such original recorded
intervening assignment of mortgage or a copy of such intervening assignment of
mortgage certified by the appropriate public recording office to be a true and
complete copy of the original recorded intervening assignment of mortgage will
be promptly delivered to the Custodian upon receipt thereof by the Seller; or
(ii) in the case of an intervening assignment where a public recording office
retains the original recorded intervening assignment or in the case where an
intervening assignment is lost after recordation in a public recording office,
a copy of such intervening assignment certified by such public recording
office to be a true and complete copy of the original recorded intervening
assignment;
(g) with respect to Mortgage Loans that are not Co-op Loans,
the original mortgagee policy of title insurance or, in the event such
original title policy is unavailable, a copy of the policy or related policy
binder or commitment for title from the title insurance company;
(h) the original or, if unavailable, a copy of any security
agreement, chattel mortgage or equivalent document executed in connection with
the Mortgage;
(i) with respect to any Co-op Loan: (i) a copy of the Co-op
Lease and the assignment of such Co-op Lease, with all intervening assignments
showing a complete chain of title and an assignment thereof by Seller; (ii)
the stock certificate together with an undated stock power relating to such
stock certificate executed in blank; (iii) the recognition agreement of the
interests of the Mortgagee with respect to the Co-op Loan by the residential
cooperative housing corporation, the stock of which was pledged by the related
Mortgagor to the originator of such Co-op Loan; and (iv) copies of the
financing statement filed by the originator as secured party and, if
applicable, a filed UCC-3 assignment of the subject security interest showing
a complete chain of title, together with an executed UCC-3 assignment of such
security interest by the Seller in a form sufficient for filing; and
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(j) if any of the above documents has been executed by a
person holding a power of attorney, an original or photocopy of such power.
In the event an Officer's Certificate of the Seller is
delivered to the Purchaser because of a delay caused by the public recording
office in returning any recorded document, the Seller shall deliver to the
Purchaser, within 90 days of the Closing Date, an Officer's Certificate which
shall (i) identify the recorded document, (ii) state that the recorded
document has not been delivered to the Custodian due solely to a delay caused
by the public recording office, (iii) state the amount of time generally
required by the applicable recording office to record and return a document
submitted for recordation, and (iv) specify the date the applicable recorded
document will be delivered to the Custodian; provided, however, that any
recorded document shall in no event be delivered later than one year following
the Closing Date. An extension of the date specified in clause (iv) above may
be requested from the Purchaser, which consent shall not be unreasonably
withheld. The original Mortgage Note bearing all intervening endorsements,
endorsed "Pay to the order of _________, without recourse" and signed in the
name of the last endorsee (the "Last Endorsee") by an authorized officer. To
the extent that there is no room on the face of the Mortgage Notes for
endorsements, the endorsement may be contained on an allonge, unless state law
does not so allow and the Custodian is so advised by the Purchaser or its
designee that state law does not so allow. If the Mortgage Loan was acquired
by the Seller in a merger (as the Custodian is notified in writing), the
endorsement must be by "[Last Endorsee], successor by merger to [name of
predecessor]". If the Mortgage Loan was acquired or originated by the Last
Endorsee while doing business under another name (as the Custodian is notified
in writing), the endorsement must be by "[Last Endorsee], formerly known as
[previous name]";
Notwithstanding the foregoing, in connection with any item
described above in clauses (c), (d) or (f), if the Seller cannot deliver or
cause to be delivered the original of any such item with evidence of recording
thereon on or prior to the Closing Date because of a delay caused by the
public recording office where such item has been delivered for recordation or
because such item has been lost or because such public recording office
retains the original recorded item (each such item, a "Delayed Document"), the
Seller shall deliver or cause to be delivered to the Custodian, (i) in the
case of a delay caused by the public recording office, a photocopy of such
Delayed Document, together with an officer's certificate of the Seller (or
certified by the title company, escrow agent, or closing attorney) to the
effect that such copy is a true and correct copy of the Delayed Document that
has been dispatched to the appropriate public recording office for recordation
(and the original recorded Delayed Document or a copy of such Delayed Document
certified by such public recording office to be a true and complete copy of
the original recorded Delayed Document will be promptly delivered to the
Custodian upon receipt thereof by the Seller); or (ii) in the case of a
Delayed Document where a public recording office retains the original recorded
Delayed Document or in the case where a Delayed Document is lost after
recordation in a public recording office, a copy of such Delayed Document
certified by such public recording office to be a true and complete copy of
the original recorded Delayed Document.
From time to time, the Purchaser or its designee shall
forward to the Custodian additional original documents, additional documents
evidencing an assumption, modification, consolidation or extension of a
Mortgage Loan, in accordance with the terms of the related
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Purchase Agreement. All such mortgage documents held by the Custodian as to
each Mortgage Loan shall constitute the "Custodial File".
Notwithstanding anything to the contrary contained in this
Section 2, in those instances where the public recording office retains or
loses the original Mortgage or assignment after it has been recorded, the
obligations of the Seller shall be deemed to have been satisfied upon delivery
to the Purchaser prior to the Closing Date of a copy of such Mortgage or
assignment, as the case may be, certified (such certification to be an
original thereof) by the public recording office to be a true and complete
copy of the recorded original thereof.
Section 3. [Reserved.]
Section 4. Obligations of the Custodian.
(a) The Custodian shall maintain continuous custody of all
items constituting the Custodial Files in secure facilities in accordance with
customary standards for such custody and shall reflect in its records the
interest of the Purchaser therein. Each Mortgage Note (and Assignment of
Mortgage) shall be maintained in fire resistant facilities.
(b) With respect to the documents constituting each Custodial
File relating to a Mortgage Loan listed on any Mortgage Loan Schedule, the
Custodian shall (i) act exclusively as the bailee of, and custodian for, the
Purchaser and the Trust, (ii) hold all documents constituting such Custodial
File received by it for the exclusive use and benefit of the Purchaser or
Trust, and (iii) make disposition thereof only in accordance with the terms of
this Custodial Agreement.
(c) In the event that (i) the Purchaser, the Servicer or the
Custodian shall be served by a third party with any type of levy, attachment,
writ or court order with respect to any Custodial File or any document
included within a Custodial File or (ii) a third party shall institute any
court proceeding by which any Custodial File or a document included within a
Custodial File shall be required to be delivered otherwise than in accordance
with the provisions of this Custodial Agreement, the party receiving such
service shall promptly deliver or cause to be delivered to the other parties
to this Custodial Agreement copies of all court papers, orders, documents and
other materials concerning such proceedings. The Custodian shall, to the
extent permitted by law, continue to hold and maintain all the Custodial Files
that are the subject of such proceedings pending a final, nonappealable order
of a court of competent jurisdiction permitting or directing disposition
thereof. Upon final determination of such court, the Custodian shall dispose
of such Custodial File or any document included within such Custodial File as
directed by the Purchaser which shall give a direction consistent with such
determination. Expenses and fees (including attorney's fees) of the Custodian
incurred as a result of such proceedings shall be borne by the Trust.
(d) The Purchaser hereby acknowledges that the Custodian
shall not be responsible for the validity and perfection of the Purchaser's
security interest in the Mortgage Loans hereunder, other than the Custodian's
obligation to take possession of the Custodial Files as set forth in Section 2
hereof.
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(e) The Custodian shall have no duties or responsibilities
except those that are specifically set forth herein, or as subsequently agreed
in writing by the parties hereto, and no implied covenants or obligations
shall be read into this Agreement against the Custodian.
(f) The Custodian shall have no responsibility nor duty with
respect to any Custodial Files while not in its possession.
(g) The Custodian shall be under no obligation to make any
investigation into the facts or matters stated in any resolution, exhibit,
request, representation, opinion, certificate, statement, acknowledgement,
consent, order or document in the Custodial File.
(h) The Custodian shall not be liable with respect to any
action taken or omitted to be taken in accordance with the written direction,
instruction, acknowledgement, consent or any other communication from the
Trustee.
(i) The provisions of this Section 4 shall survive the
resignation or removal of the Custodian and the termination of this Custodial
Agreement.
Section 5. Trust Receipt.
On or prior to 5:00 p.m. New York City time on the Closing Date, the
Custodian shall deliver to the Purchaser and the Trustee via electronic
transmission mutually acceptable to the Purchaser, the Custodian and the
Trustee (or via facsimile in the event of a delivery failure via such
electronic transmission) a Trust Receipt attaching a Mortgage Loan Schedule and
Exception Report and indicating that, as to each Mortgage Loan listed in the
attached Mortgage Loan Schedule (other than any Mortgage Loan paid in full or
any Mortgage Loan specifically identified in such certification as not covered
by such certification): (i) all documents required to be delivered to it are in
its possession; (ii) such documents have been reviewed by it and appear regular
on their face and relate to such Mortgage Loan; (iii) each Custodial File has
been reviewed in accordance with the review procedures set forth in Exhibit 1
hereto; (iv) each Mortgage Note (except with respect to MERS Designated
Mortgage Loans) has been endorsed as provided in Section 2(a); (v) with respect
to each MERS Designated Mortgage Loan, the MIN Number for that Mortgage Loan
conforms to the one set forth on the schedule provided to the Custodian and;
(vi) the Custodian is holding each Mortgage Loan identified on the related
Mortgage Loan Schedule pursuant to this Custodial Agreement, as the bailee of
and custodian for the Trustee. The Custodian makes no representations as to:
(i) the validity, legality, sufficiency, enforceability or genuineness of any
of the documents contained in each Mortgage File of any of the Mortgage Loans
identified on the Mortgage Loan Schedule, or (ii) the collectability,
insurability, perfection, priority, effectiveness or suitability of any such
Mortgage Loan. Notwithstanding anything herein to the contrary, the Custodian
has made no determination and makes no representations as to whether (i) any
endorsement is sufficient to transfer all right, title and interest of the
party so endorsing, as Noteholder or assignee thereof, in and to that Mortgage
Note or (ii) any assignment is in recordable form or sufficient to effect the
assignment of and transfer to the assignee thereof, under the Mortgage to which
the assignment relates. A list of any Exceptions outstanding shall also be
included as part of the Mortgage Loan Schedule and Exception Report.
On the Cut-off Date the Custodian shall provide to the
Purchaser a Preliminary Mortgage Loan Schedule and Exception Report, via
electronic transmission acceptable to the
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Purchaser (or via facsimile in the event of a delivery failure via such
electronic transmission) for all Mortgage Loans received one Business Day
prior to the Cut-off Date. Upon receiving confirmation from the Purchaser that
such Mortgage Loans included in the Preliminary Mortgage Loan Schedule and
Exception Report have been purchased, the Custodian will include these loans
on the Mortgage Loan Schedule and Exception Report.
Each Mortgage Loan Schedule and Exception Report shall list
all Exceptions using such codes as shall be in form and substance agreed to by
the Custodian and the Purchaser. Each Mortgage Loan Schedule and Exception
Report shall be superseded by the subsequently issued Mortgage Loan Schedule
and Exception Report and shall be included as an attachment to the Trust
Receipt. The delivery of each Mortgage Loan Schedule and Exception Report to
the Purchaser shall be the Custodian's certification of items (i)-(vi) in
paragraph one of this Section 5.
Section 6. Future Defects.
During the term of this Agreement, if the Custodian
discovers any defect with respect to the Custodial File, the Custodian shall
give written specification of such defect to the Purchaser and the Trustee.
Section 7. Release for Servicing.
From time to time and as appropriate for the foreclosure or
servicing of any of the Mortgage Loans, the Custodian shall, upon receipt in
writing or facsimile form from the Servicer of a request for release of
documents and receipt in the form annexed hereto as Exhibit 3 or by Electronic
Transmission (each, a "Request for Release"), release to the Servicer the
related Custodial File or the documents set forth in such Request for Release.
The Servicer shall forward a copy of any such Request for Release to the
Trustee. Any document released to the Servicer pursuant to a Request for
Release shall be returned to the Custodian no later than five (5) Business
Days from the date on such Request for Release, and the Custodian shall notify
the Trustee of any failure by the Servicer to so return any such document.
All Mortgage Files or documents from Mortgage Files released
by the Custodian to the Servicer pursuant to this Section 7 shall be held by
the Servicer in trust for the benefit of the Trust. The Servicer shall return
to the Custodian the Custodial File or other such documents when the
Servicer's need therefor in connection with such foreclosure or servicing no
longer exists (but in any event no later than five (5) Business Days from the
date on such Request for Release), unless the Mortgage Loan shall be
liquidated. In such a case, upon receipt of an additional Request for Release
certifying such liquidation from the Servicer to the Custodian in the form
annexed hereto as Exhibit 3 or by Electronic Transmission, the Servicer's
Request for Release submitted pursuant to the first sentence of this Section 7
shall be released by the Custodian to the Servicer, with a copy to the
Trustee.
Section 8. Limitation on Release.
The provision set forth in Section 7 above relating to the
release to the Servicer of the Custodial Files and documents by the Custodian
shall be operative only to the extent that the Custodian shall not have
released to the Servicer Custodial Files or the Servicer shall not have
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requested the Custodian to release to it active Custodial Files or documents
(including those requested) pertaining to more than fifteen (15) Mortgage
Loans at the time in the aggregate. Any additional Custodial Files or
documents requested to be released to the Servicer may only be released upon
written authorization of the Purchaser or the Trustee, as applicable. The
limitations of this paragraph shall not apply to the release of Custodial
Files under Section 9 below.
Section 9. Release for Payment.
Upon the repurchase of any Mortgage Loan pursuant to the
applicable Purchase Agreement, or upon the payment in full of any Mortgage
Loan, and upon receipt by the Custodian of (i) the Servicer's Request for
Release delivered in writing or facsimile form or by Electronic Transmission
(which Request for Release shall include a statement to the effect that all
amounts payable to the Purchaser in connection with a repurchase have been
remitted as provided in the related Servicing Agreement) or (ii) direction of
the Purchaser or the Trustee, as applicable, the Custodian shall promptly
release the related Custodial File in accordance with such Request for Release
or direction.
Section 10. Fees of Custodian.
Certain agreed-upon fees and expenses of the Custodian are
the obligation of the Securities Administrator, as set forth in a separate fee
schedule.
The Purchaser hereby agrees to pay any other fees of the
Custodian on the fee schedule agreed upon by the Purchaser and the Custodian.
Section 11. Removal of Custodian.
The Purchaser, with or without cause, may (i) require the
Custodian to complete the endorsements on the Mortgage Notes and to complete
and record the Assignments of Mortgage (in either case, at no expense to the
Custodian), and/or (ii) upon at least 30 days' notice remove and discharge the
Custodian from the performance of its duties under this Agreement by written
notice from the Purchaser to the Custodian. Having given notice of such
removal (other than in the event of a termination), the Purchaser promptly
shall appoint a successor Custodian to act on behalf of the Purchaser by
written instrument, one original counterpart of which instrument shall be
delivered to the Purchaser, with an original to the successor Custodian. In
the event of any removal, the Custodian shall, at the expense of the Trust,
promptly transfer to the successor Custodian or subsequent purchaser, as
directed, all Custodial Files being administered under this Agreement relating
to such Mortgage Loans, and shall assign the Mortgages and endorse the
Mortgage Notes to the successor Custodian or subsequent purchaser if the
endorsements on the Mortgage Notes and the Assignments of Mortgages have been
completed in the name of the Custodian. Additionally, the Trustee may remove
the Custodian upon notice if the Custodian defaults in its obligations under
Section 32.
Section 12. Transfer of Custodial Files Upon Termination.
If the Custodian is furnished written evidence from the
Trust that the PSA has been terminated as to any or all of the Mortgage Loans,
upon written request of the Purchaser and, if requested by the Custodian,
receipt of proof satisfactory to the Custodian of the
14
ownership of the Mortgage Loans, the Custodian shall release to such persons
as the Trustee shall designate the Custodial Files relating to such Mortgage
Loans as the Trustee shall request, and shall assign the Mortgages and endorse
the Mortgage Notes as the Trustee shall request at the Trust's expense.
Section 13. Examination of Custodial Files.
Upon reasonable prior notice to the Custodian, the Trustee
and its agents, accountants, attorneys and auditors will be permitted during
normal business hours to examine the Custodial Files, documents, records and
other papers in the possession of or under the control of the Custodian
relating to any or all of the Mortgage Loans in any Mortgage Loan Package.
Section 14. Insurance of Custodian.
At its own expense, the Custodian shall maintain at all
times during the existence of this Agreement and keep in full force and effect
fidelity insurance, theft of documents insurance, forgery insurance and errors
and omissions insurance. All such insurance shall be in amounts, with standard
coverage and subject to deductibles, all as is customary for insurance
typically maintained by banks which act as custodian. The minimum coverage
under any such bond and insurance policies shall be at least equal to the
corresponding amounts required by ▇▇▇▇▇▇ ▇▇▇ in the ▇▇▇▇▇▇ Mae Mortgage-Backed
Securities Selling and Servicing Guide or by ▇▇▇▇▇▇▇ Mac in the ▇▇▇▇▇▇▇ Mac
Seller's & Servicer's Guide. A certificate of the respective insurer as to
each such policy, with a copy of such policy attached, shall be furnished to
the Purchaser and the Trustee upon request.
Section 15. Counterparts.
For the purpose of facilitating the execution of this
Agreement as herein provided and for other purposes, this Agreement may be
executed simultaneously in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.
Section 16. Reserved.
Section 17. Governing Law.
This Agreement shall be construed in accordance with the
laws of the State of New York, and the obligations, rights, and remedies of
the parties hereunder shall be determined in accordance with the substantive
laws of the State of New York (without regard to conflicts of laws
principles), except to the extent preempted by federal law.
Section 18. Copies of Mortgage Documents.
Upon the request of the Trust or the Servicer and at the
cost and expense of the Purchaser, the Custodian shall provide the Trustee,
the Purchaser or the Servicer, as applicable, with copies of the Mortgage
Notes, Mortgages, Assignments of Mortgage and other documents relating to one
or more of the Mortgage Loans.
15
Section 19. No Adverse Interest of Custodian.
By execution of this Agreement, the Custodian represents and
warrants that it currently holds, and during the existence of this Agreement
shall hold, no adverse interest, by way of security or otherwise, in any
Mortgage Loan, and hereby waives and releases any such interest which it may
have in any Mortgage Loan as of the date hereof.
Section 20. Termination by Custodian.
The Custodian may terminate its obligations under this
Agreement upon at least 60 days notice to the Trustee, the Master Servicer,
the Securities Administrator and the Servicer. In the event of such
termination, the Trustee shall appoint a successor Custodian, which successor
Custodian shall be an FHA Approved Mortgagee and a VA Approved Lender. The
payment of such successor Custodian's fees and expenses shall be solely the
responsibility of the Securities Administrator. Upon such appointment, the
Custodian shall promptly transfer to the successor Custodian, as directed, all
Custodial Files being administered under this Agreement. In the event that no
successor Custodian shall have been appointed and shall have accepted such
appointment before the expiration of such 60 day notice period, the
terminating Custodian may petition any court of competent jurisdiction to
appoint a successor.
Section 21. Entire Agreement; Severability.
This Agreement contains the entire agreement with respect to
the rights and obligations of the Custodian among the Purchaser, the Servicer,
the Trustee and the Custodian. If any provisions of this Custodial Agreement
shall be held invalid or unenforceable, this Agreement shall be construed as
if not containing such provisions, and the rights and obligations of the
parties hereto shall be construed and enforced accordingly.
Section 22. Term of Agreement.
Unless terminated pursuant to Section 11 or Section 20
hereof, this Agreement shall terminate upon the last to occur of (i) the final
payment or other liquidation (or advance with respect thereto) of the last
Mortgage Loan, (ii) the disposition of all property acquired upon foreclosure
or deed in lieu of foreclosure of any Mortgage Loan, or (iii) the final
remittance of all funds due to the Purchaser under the Sale and Servicing
Agreements. In such event the Trustee shall notify the Custodian of such
termination in writing and all documents remaining in the Custodial Files
shall be released in accordance with the written instructions of the Trustee.
Section 23. Notices.
All demands, notices and communications hereunder shall be
in writing (and if to the Custodian, marked with reference number MS064C and
shall be deemed to have been duly given if mailed, by registered or certified
mail, return receipt requested, or, if by other means, when received by the
recipient party at the address shown on the first page hereof, or at such
other addresses as may hereafter be furnished to the other parties by like
notice. Any communications permitted to be delivered electronically via
electronic transmission to the Purchaser shall be sent to conduitops
@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, or such other e-mail address as may hereafter be furnished
to the Custodian in writing. Any such demand, notice or communication
16
hereunder shall be deemed to have been received on the date delivered to or
received at the premises of the addressee (as evidenced, in the case of
registered or certified mail, by the date noted on the return receipt).
Section 24. Successors and Assigns.
This Agreement shall inure to the benefit of the successors
and assigns of the parties hereto; provided that the Custodian shall not
assign this Agreement without the prior written consent of the Purchaser.
Section 25. Indemnification.
In the event that the Custodian fails to produce a Mortgage
Note, Assignment of Mortgage or any other document related to a Mortgage Loan
that was in its possession pursuant to Section 2 within five (5) Business Days
after required or requested by the Trustee or the Servicer, and provided, that
(i) Custodian previously delivered to the Purchaser or the Trustee a Trust
Receipt with respect to such document; (ii) such document is not outstanding
pursuant to a Request for Release; and (iii) such document was held by the
Custodian on behalf of the Purchaser (a "Custodial Delivery Failure"), then
the Custodian shall (a) with respect to any missing Mortgage Note, promptly
deliver to the Purchaser, the Trustee or the Servicer upon request, a Lost
Note Affidavit in the form of Exhibit 5 annexed hereto and (b) with respect to
any missing document related to such Mortgage Loan including but not limited
to, a missing Mortgage Note, indemnify the Purchaser, the Trustee or the
Servicer in accordance with the succeeding paragraph of this Section 25.
The Custodian agrees to indemnify and hold the Purchaser,
the Trustee, the Servicer and their respective employees, officers, directors
and agents harmless against any and all direct liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements, including reasonable attorney's fees, that may be imposed on,
incurred by, or asserted against it or them in any way relating to or arising
out of such Custodial Delivery Failure. The foregoing indemnification shall
survive any termination or assignment of this Custodial Agreement or the
removal or resignation of the Custodian hereunder.
Section 26. Indemnification of Custodian.
Except as set forth in Section 25, neither the Custodian nor
any of its directors, officers, agents or employees, shall be liable to any
Person for any action taken or omitted to be taken by it or them hereunder or
in connection herewith in good faith and believed by it or them to be within
the purview of this Custodial Agreement, except for a breach of its
obligations hereunder, which breach was caused by its or their own negligence,
lack of good faith or willful misconduct. In no event shall the Custodian or
its directors, officers, agents and employees be held liable to any Person for
any special, indirect or consequential damages resulting from any action taken
or omitted to be taken by it or them hereunder or in connection herewith even
if advised of the possibility of such damages.
The Trustee on behalf of the Trust agrees to indemnify and
hold the Custodian and its directors, officers, agents and employees harmless
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or
17
disbursements of any kind or nature whatsoever, including reasonable
attorney's fees, that may be imposed on, incurred by, or asserted against it
or them in any way relating to or arising out of this Custodial Agreement or
any action taken or not taken by it or them hereunder except for such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements were imposed on, incurred by or
asserted against the Custodian because of the breach by the Custodian of its
obligations hereunder, which breach was caused by negligence, lack of good
faith or willful misconduct on the part of the Custodian or any of its
directors, officers, agents or employees. The foregoing indemnification shall
survive any termination or assignment of this Custodial Agreement or the
removal or resignation of the Custodian hereunder.
Section 27. Reliance of Custodian.
(a) In the absence of bad faith on the part of the
Custodian, the Custodian may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificate or opinion furnished to the Custodian, believed by the Custodian
to have been signed or presented by an Authorized Representative and
conforming in form only to the requirements of this Custodial Agreement; but
in the case of any certificate or opinion which by any provision hereof is
specifically required to be furnished to the Custodian, the Custodian shall be
under a duty to examine the same in accordance with the requirements of this
Custodial Agreement.
(b) In the absence of bad faith on the part of the
Custodian, the Custodian may rely upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, coupon or any other communication believed by the Custodian to be
genuine and to have been signed or made by an Authorized Representative.
(c) This Section shall not be construed to limit the effect
of any provision of this Custodial Agreement respecting the rights or remedies
of the Custodian or any other right of the Custodian.
(d) In order to comply with laws, rules and regulations
applicable to banking institutions, including those relating to the funding of
terrorist activities and money laundering, the Custodian is required to
obtain, verify and record certain information relating to individuals and
entities which maintain a business relationship with the Custodian.
Accordingly, each of the parties agrees to provide to the Custodian upon its
request from time to time such party's complete name, address, tax
identification number and such other identifying information together with
copies of such party's constituting documentation, securities disclosure
documentation and such other identifying documentation as may be available for
such party.
Section 28. Obligations of the Custodian With Respect to the Trust Receipt.
(a) Each Trust Receipt, upon initial issuance or reissuance,
shall be dated the date of such issuance or reissuance and shall evidence the
receipt and possession by the Custodian on behalf of the Trust of the Trust
Receipt of the Mortgage Files and the Trust's right to possess those Mortgage
Files. The Custodian shall treat the person or entity in whose name the Trust
Receipt is registered as the person or entity entitled to possession of the
Mortgage Files
18
evidenced by such Trust Receipt for all purposes whatsoever, subject to the
terms of this Agreement, and the Custodian shall not be affected by notice of
any facts to the contrary. No Trust Receipt shall be valid for any purpose
unless substantially in the form set forth in Exhibit 2 to this Agreement and
executed by manual signature of an Authorized Representative of the Custodian.
Such signature upon any Trust Receipt shall be conclusive evidence, and the
only evidence, that such Trust Receipt has been duly delivered under this
Agreement. Trust Receipts bearing the manual signatures of individuals who
were, at the time when such signatures were affixed, Authorized
Representatives of the Custodian shall bind the Custodian, notwithstanding
that such individuals have ceased to be so authorized prior to the delivery of
those Trust Receipts. Each Trust Receipt shall have attached thereto a
Mortgage Loan Schedule and Exception Report with respect to the applicable
Mortgage Loans. Any transferee or assignee of the Trust Receipt shall succeed
to all the rights of the Trust under this Agreement with respect to such Trust
Receipt and the related Mortgage Loans upon notice to the Custodian and
delivery to the Custodian of the appropriate evidence of such transfer and
assignment.
(b) The Trust may transfer its interest in the Mortgage
Files covered by any Trust Receipt by delivering to the transferee (the
"Transferee") such Trust Receipt, together with an appropriate notice to the
Custodian in the form of Exhibit 9 hereto (the "Notice to the Custodian").
Within five Business Days of receipt of the Notice to the Custodian and
receipt by the Custodian of the Trust Receipt from the Transferee, the
Custodian shall deliver, in accordance with the written instructions of the
Transferee, a Trust Receipt issued in the name of the Transferee and to the
place indicated in any such written direction from the Transferee. Upon
receipt of the Notice to the Custodian from the Trustee, the Custodian shall
change its records to reflect that such Transferee is the owner of the
Mortgage Files.
(c) In the event that (i) any mutilated Trust Receipt is
surrendered to the Custodian, or the Custodian receives evidence to its
satisfaction of the destruction, loss or theft of any Trust Receipt and (ii)
there is delivered to the Custodian such security or indemnity as may be
required by it to save it harmless, then, in the absence of notice to the
Custodian that such Trust Receipt has been acquired by a bona fide purchaser,
the Custodian shall execute and deliver a new Trust Receipt to the Trustee in
exchange for or in lieu of any such mutilated, lost or stolen Trust Receipt.
(d) Simultaneously with the relinquishment of a Trust
Receipt to the Custodian by the Trustee and the delivery by the Custodian of
the related Mortgage Files to the Servicer or the Trustee or a designee of the
Trust, the Trust Receipt shall be canceled and the related Mortgage Files will
no longer be subject to this Agreement.
Section 29. Transmission of Custodial Files.
Written instructions as to the method of shipment and
shipper(s) the Custodian is directed to utilize in connection with
transmission of mortgage files and loan documents in the performance of the
Custodian's duties hereunder shall be delivered by the Servicer to the
Custodian prior to any shipment of any mortgage files and loan document
hereunder at the cost and expense of the Purchaser and the Purchaser will
maintain such insurance against loss or damage to mortgage files and loan
documents as the Purchaser deems appropriate. Without limiting the generality
of the provisions of Sections 25 and 26 above, it is expressly agreed that
19
in no event shall the Custodian have any liability for any losses or damages
to any person, including, without limitation, the Servicer, arising out of
actions of the Custodian consistent with instructions of the Servicer. In the
event the Custodian does not receive such written instructions, the Custodian
may utilize any nationally recognized courier service and shall be indemnified
as provided herein for such usage.
Section 30. Authorized Representatives.
Each individual designated as an authorized representative
of the Custodian, the Purchaser, the Master Servicer, the Trustee, the
Securities Administrator and the Servicer, respectively (an "Authorized
Representative"), is authorized to give and receive notices, requests and
instructions and to deliver certificates and documents in connection with this
Custodial Agreement on behalf of the Custodian or the Purchaser, as the case
may be, and the specimen signature for each such Authorized Representative of
the Custodian, each such Authorized Representative of the Purchaser and each
such Authorized Representative of the Servicer, initially authorized
hereunder, is set forth on Exhibits 6, 7 and 8 hereof, respectively. From time
to time, the Custodian, the Purchaser and the Servicers may, by delivering to
the others a revised exhibit, change the information previously given pursuant
to this Section 30, but each of the parties hereto shall be entitled to rely
conclusively on the then current exhibit until receipt of a superseding
exhibit.
Section 31. Reproduction of Documents.
This Custodial Agreement and all documents relating thereto
except with respect to the Custodial File, including, without limitation, (a)
consents, waivers and modifications which may hereafter be executed, and (b)
certificates and other information previously or hereafter furnished, may be
reproduced by any photographic, photostatic, microfilm, microcard, miniature
photographic or other similar process. The parties agree that any such
reproduction shall be admissible in evidence as the original itself in any
judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
Section 32. Compliance with Regulation AB
The Purchaser, the Servicer, the Trustee, the Master
Servicer, the Securities Administrator and the Custodian further agree as
follows:
32.01: Defined Terms: The following terms are used in this
Section 32 as defined below:
Commission: The United States Securities and Exchange
Commission.
Determination Date: The 15th day (or, if such 15th day is
not a Business Day, the following Business Day) of each month.
Exchange Act. The Securities Exchange Act of 1934, as
amended.
20
Regulation AB: Subpart 229.1100 - Asset Backed Securities
(Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended
from time to time, and subject to such clarification and interpretation as
have been provided by the Commission in the adopting release (Asset-Backed
Securities, Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531
(Jan. 7, 2005)) or by the staff of the Commission, or as may be provided by
the Commission or its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction. Any transaction involving either
(1) a sale or other transfer of some or all of the Mortgage Loans directly or
indirectly to an issuing entity in connection with an issuance of publicly
offered or privately placed, rated or unrated mortgage-backed securities or
(2) an issuance of publicly offered or privately placed, rated or unrated
securities, the payments on which are determined primarily by reference to one
or more portfolios of residential mortgage loans consisting, in whole or in
part, of some or all of the Mortgage Loans.
Servicing Criteria: The "servicing criteria" set forth in
Item 1122(d) of Regulation AB, as such may be amended from time to time with
respect to the maintenance of pool collateral and safeguarding of pool assets
and documents.
32.02 Intent of the Parties; Reasonableness.
The parties hereto acknowledge and agree that the purpose of
this Section 32 is to facilitate compliance by the Purchaser with the
provisions of Regulation AB and related rules and regulations of the
Commission. The Purchaser shall not exercise its right to request delivery of
information or other performance under these provisions other than in good
faith, or for purposes other than compliance with the Securities Act, the
Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. Each of the parties hereto acknowledges
that interpretations of the requirements of Regulation AB may change over
time, whether due to interpretive guidance provided by the Commission or its
staff, consensus among participants in the mortgage-backed securities markets,
advice of counsel, or otherwise, and agrees to comply with reasonable requests
made by the Purchaser in good faith for delivery of information within the
scope of the Custodian's ordinary course of business under these provisions on
the basis of evolving interpretations of Regulation AB, provided, however that
if extraordinary measures are required to provide information reasonably
determined by the Custodian to be outside the Custodian's ordinary course of
business, the reasonable costs of such compliance will be borne by the
Purchaser, so long as the Custodian provides prior notice to the Purchaser.
The Custodian shall cooperate reasonably with the Purchaser to deliver to the
Purchaser (including any of its assignees or designees), any and all
disclosure, statements, reports, certifications, records and any other
information necessary in the reasonable, good faith determination of the
Purchaser to permit the Purchaser to comply with the provisions of Regulation
AB.
32.03: Additional Representations and Warranties of the
Custodian.
21
(a) The Custodian shall be deemed to represent to the
Purchaser as of the date hereof and on each date on which information is
provided to the Purchaser under Section 32.03 that, except as disclosed in
writing to the Purchaser prior to such date: (i) the Custodian is in
compliance with all of the requirements set forth in Section 28 hereof; (ii)
there are no material legal or governmental proceedings pending (or known to
be contemplated) against it of the type described in Item 1117 of Regulation
AB; and (iii) there are no affiliations or, with respect to the Purchaser,
Depositor or the Trust, any relationships of the type described in Item 1119
of Regulation AB relating to the Custodian with respect to the Purchaser or
any sponsor, issuing entity, servicer, trustee, originator, significant
obligor, enhancement or support provider or other material transaction party
(as such terms are used in Regulation AB) relating to the Securitization
Transaction contemplated by the Agreement, as identified by the Purchaser to
the Custodian in writing as of the Closing Date (each, a "Transaction Party").
(b) If so requested by the Purchaser, on or before
March 15 of each calendar year and as needed, commencing in 2007, the
Custodian shall, within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set forth in
paragraph (a) of this Section or, if any such representation and warranty is
not accurate as of the date of such confirmation, provide reasonably adequate
disclosure of the pertinent facts, in writing, to the requesting party. Any
such request from the Purchaser shall not be given more than once each
calendar quarter, unless the Purchaser shall have a reasonable basis for a
determination that any of the representations and warranties may not be
accurate.
32.04: Additional Information to Be Provided by the
Custodian.
For so long as the Trust is subject to Exchange
Act reporting requirements, for the purpose of satisfying the Depositor's
reporting obligation under the Exchange Act with respect to any class of
Certificates, the Custodian shall (a) notify the Depositor, the Master Servicer
and the Securities Administrator in writing of (i) any material litigation or
governmental proceedings pending against the Custodian (including any such
proceedings known to be contemplated by governmental authorities) that would
be material to Certificateholders, and (ii) upon the request of the Depositor,
the Master Servicer or the Securities Administrator, any affiliation,
relationships or transactions relating to the Custodian with respect to the
Depositor or other transaction parties identified to the Custodian in such
request and (b) provide to the Depositor, the Master Servicer and the Securities
Administrator a written description thereof. Any notices and descriptions
required under this Section 32.04 shall be given no later than five Business
Days prior to the Determination Date in the month following the month in which
the Custodian has received such request.
32.05: Report on Assessment of Compliance and Attestation.
(a) For so long as the Purchaser or the Master
Servicer, as applicable, is filing an annual report on Form 10-K in accordance
with the Exchange Act and the rules and regulations of the Commission, on or
before March 15 of each calendar year, commencing in 2007, the Custodian
shall:
(1) deliver to the Purchaser and the Master Servicer a
report regarding the Custodian's assessment of compliance with the Servicing
Criteria during the immediately preceding calendar year. Such report shall be
signed by an authorized officer of the Custodian, and shall address each of
the Servicing Criteria specified on Exhibit 11 hereto. The Custodian hereby
acknowledges that such report will be relied upon as if it were addressed to
the Purchaser and Master Servicer; and
22
(2) deliver to the Purchaser and the Master Servicer a
report of a registered public accounting firm that attests to, and reports on,
the assessment of compliance made by the Custodian and delivered pursuant to
the preceding paragraph. Such attestation shall be in accordance with
applicable provisions of Regulation AB.
32.06: Indemnification
(a) The Custodian shall indemnify the Depositor, each
affiliate of the Depositor, the Master Servicer and each Person who controls
any of such parties (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective directors, officers, and
employees of each of the foregoing (each, an "Indemnified Party"), and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain directly
relating to:
(i) (A) any untrue statement of a material fact contained or
alleged to be contained in any information, compliance assessment or other
material provided under Section 32.04 or 32.05 by or on behalf of the Custodian
(collectively, the "Custodian Information"), or (B) the omission or alleged
omission to state in the Custodian Information a material fact required to be
stated in the Custodian Information or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; or
(ii) any failure by the Custodian to deliver or cause to be
delivered any information, report, certification, accountants' attestation or
other material when and as required under Section 32.04 or 32.05; or
(iii) the negligence, bad faith or willful misconduct of the
Custodian in the performance of its obligations under Section 32.04 or 32.05.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the Custodian agrees
that it shall contribute to the amount paid or payable by such Indemnified
Party as a result of any claims, losses, damages or liabilities incurred by
such Indemnified Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and the Custodian on
the other.
(b) In the case of any failure of performance described
in clause (a) of this Subsection 32.06, the Custodian shall promptly reimburse
the Purchaser, any Depositor, as applicable, and each Person responsible for
the preparation, execution or filing of any report required to be filed with
the Commission with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule 15d-14(d)
under the Exchange Act with respect to such Securitization Transaction, for
all costs reasonably incurred by each such party in order to obtain the
information, report, certification, accountants' letter or other material not
delivered as required by the Custodian, any Subservicer, or any Subcontractor.
This indemnification shall survive the termination of this
Agreement or the termination of any party to this Agreement
Section 33. Waiver of Trial by Jury.
THE SERVICER, THE CUSTODIAN AND THE PURCHASER EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 34. Submission To Jurisdiction; Waivers.
Each of the Servicers, the Custodian and the Purchaser
hereby irrevocably and unconditionally:
23
(A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT, OR FOR RECOGNITION AND ENFORCEMENT
OF ANY JUDGMENT IN RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION
OF THE COURTS OF THE STATE OF NEW YORK, THE FEDERAL COURTS OF THE UNITED
STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS
FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE
BROUGHT IN SUCH COURTS AND, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN
AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR
PROCEEDING MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR
CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID,
TO ITS ADDRESS SET FORTH HEREIN OR AT SUCH OTHER ADDRESS OF WHICH THE
PURCHASER SHALL HAVE BEEN NOTIFIED; AND (D) AGREES THAT NOTHING HEREIN SHALL
AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR SHALL LIMIT THE RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION.
[SIGNATURE PAGE FOLLOWS]
24
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement by their duly authorized officers as of the date first above
written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
as Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: VP
GMAC MORTGAGE CORPORATION,
as Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Custodian
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signee
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage
Loan Trust 2006-11
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: ▇▇
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: ▇▇
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Securities Administrator
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VP
2
EXHIBIT 1
---------
REVIEW PROCEDURES
-----------------
This Exhibit 1 sets forth the Custodian's review procedures
for each item listed below delivered by the Purchaser or its designee pursuant
to the Custodial Agreement, dated as of July 1, 2006 (the "Agreement"), among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., GMAC Mortgage Corporation, LaSalle Bank
National Association, ▇▇▇▇▇ Fargo Bank, National Association, as Master
Servicer and Securities Administrator, and Deutsche Bank Trust Company
Americas to which this Exhibit is attached. Capitalized terms used herein and
not defined herein shall have the meanings ascribed to them in the Agreement.
a) the Mortgage Note and the Mortgage each appear to bear an
original signature or signatures purporting to be the
signature or signatures of the Person or Persons named as
the maker and Mortgagor or grantor, or in the case of copies
of the Mortgage permitted under Section 2 of the Agreement,
that such copies bear a reproduction of such signature;
b) amount of the Mortgage Note is the same as the amount
specified on the related Mortgage;
c) the mortgagee is the same as the payee on the Mortgage Note;
d) the Mortgage contains a legal description other than
address, city and state (however, the Custodian shall have
no responsibility with respect to the accuracy of such legal
description);
e) the notary section (acknowledgment) is present and attached
to the related Mortgage and is signed;
f) neither the original Mortgage Note, nor the copy of the
Mortgage delivered pursuant to the Agreement, nor the
original Assignment of Mortgage contain any notations on
their face which appear in the good faith judgment of the
Custodian to evidence any claims, liens, security interests,
encumbrances or restrictions on transfer;
g) the Mortgage Note is endorsed in blank by the named holder
or payee thereof;
h) each original Assignment of Mortgage and any intervening
assignment of mortgage, if applicable, appears to bear the
original signature of the named mortgagee or beneficiary
including any subsequent assignors, as applicable, or in the
case of copies permitted under Section 2, that such copies
appear to bear a reproduction of such signature or
signatures and the officer's certificate of the Seller, or
certification of the title company, escrow agent or closing
attorney accompanying such copies appears to bear an
original signature or a reproduction of such signature, and
the intervening assignments of mortgage evidence a complete
chain of assignment and transfer of the related Mortgage
from the
Exh. 1-1
originating Person to the borrower (or, in the case of a
MERS Designated Mortgage Loan, MERS);
i) the date of each intervening assignment is on or after the
date of the related Mortgage and/or the immediately
preceding assignment, as the case may be;
j) the notary section (acknowledgment) is present and attached
to each intervening assignment and is signed;
k) based upon a review of the Mortgage Note (and, in the case
of a MERS Designated Mortgage Loan and item (36), the MERS
Report), items (1), (2), (3), (10), (13), (16), (17), (24),
(29), (33), (34) and (36) as set forth in the Mortgage Loan
Schedule delivered to the Custodian are correct;
l) with respect to each Mortgage Loan that is not a Co-op Loan,
the original mortgagee policy of title insurance or, in the
event such original title policy is unavailable, a certified
true copy of the related policy binder or commitment for
title certified to be true and complete by the title
insurance company contains the correct Mortgagor(s) name and
a legal description (however, the Custodian shall have no
responsibility to verify the correctness or sufficiency of
such legal description), and the insured amount is no less
than the amount specified on the related Mortgage; and
m) with respect to each Co-op Loan, the Custodian has received
(i) a copy of the Co-op Lease and the assignment of such
Co-op Lease, with all intervening assignments showing a
complete chain of title and an assignment thereof by Seller;
(ii) the stock certificate together with an undated stock
power relating to such stock certificate executed in blank;
and (iii) if applicable, a filed UCC-3 Assignment of the
subject security interest showing a complete chain of title,
together with an executed UCC-3 Assignment of such security
interest by the Seller.
Exh. 1-2
EXHIBIT 2
---------
FORM OF TRUST RECEIPT
---------------------
______________________
[No later than 11:00 a.m. New York City
time on the Closing Date]
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Whole Loan Operations Manager
▇▇▇▇▇ Fargo Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Global Securities and Trust Services MSM 2006-11
Re: The Custodial Agreement, dated as of July 1, 2006 (the
"Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. as
the Purchaser, GMAC Mortgage Corporation as the Servicer,
LaSalle Bank National Association as the Trustee, ▇▇▇▇▇
Fargo Bank, National Association as the Master Servicer and
the Securities Administrator, and Deutsche Bank Trust
Company Americas as the Custodian.
Ladies and Gentlemen:
In accordance with the provisions of Section 5 of the
above-referenced Custodial Agreement, the undersigned, as the Custodian,
hereby certifies that as to each Mortgage Loan listed in the related Mortgage
Loan Schedule (other than any Mortgage Loan paid in full or any Mortgage Loan
listed on the Exception Report attached hereto) it has reviewed the Custodial
Files and has determined that (i) all documents required to be delivered to it
pursuant to the Custodial Agreement are in its possession; (ii) such documents
have been reviewed by it and appear regular on their face and related to such
Mortgage Loan; (iii) each Custodial File has been reviewed in accordance with
the review procedures set forth in Exhibit 1 to the Custodial Agreement; (iv)
each Mortgage Note (except with respect to MERS Designated Mortgage Loans) has
been endorsed as provided in Section 2 of the Custodial Agreement, (v) with
respect to each MERS Designated Mortgage Loan, the MIN Number for that
Mortgage Loan conforms to the one set forth on the schedule provided to the
Custodian; and (vi) the Custodian is holding each Mortgage Loan identified on
the related Mortgage Loan Schedule pursuant to the Custodial Agreement, as the
bailee of and custodian for the Trustee on behalf of the Trust. The Custodian
makes no representations as to: (i) the validity, legality, sufficiency,
enforceability or
Exh. 2-1
genuineness of any of the documents contained in each Mortgage File of any of
the Mortgage Loans identified on the Mortgage Loan Schedule, or (ii) the
collectability, insurability, perfection, priority, effectiveness or
suitability of any such Mortgage Loan. Notwithstanding anything herein to the
contrary, the Custodian has made no determination and makes no representations
as to whether (i) any endorsement is sufficient to transfer all right, title
and interest of the party so endorsing, as Noteholder or assignee thereof, in
and to that Mortgage Note or (ii) any assignment is in recordable form or
sufficient to effect the assignment of and transfer to the assignee thereof,
under the Mortgage to which the assignment relates.
Capitalized terms used herein shall have the meaning
ascribed to them in the Custodial Agreement.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Custodian
By: _______________________________________
Name:
Title:
Exh. 2-2
EXHIBIT 3
---------
FORM OF REQUEST FOR RELEASE OF DOCUMENTS AND RECEIPT
----------------------------------------------------
To: [Address]
Re: The Custodial Agreement, dated as of July 1, 2006 (the
"Agreement"), among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., as
the Purchaser, GMAC Mortgage Corporation, as the Servicer,
LaSalle Bank National Association, as the Trustee, ▇▇▇▇▇
Fargo Bank, National Association, as the Master Servicer and
the Securities Administrator, and Deutsche Bank Trust
Company Americas, as the Custodian.
In connection with the administration of certain of the
Mortgage Loans held by you as the Custodian on behalf of the Trust for which
we are acting as a servicer (the "Servicer"), we request the release, and
acknowledge receipt, of the (Custodial File/[specify documents]) for the
Mortgage Loan described below, for the reason indicated.
Mortgagor's Name Address & Zip Code:
Mortgage Loan Number:
MERS Identification Number (if applicable):
Send Custodial File to:
Reason for Requesting Documents (check one)
__1. Mortgage Loan Paid in Full. (The Servicer hereby certifies
that all amounts received in connection therewith have been
credited as provided in the applicable Servicing
Agreement.)
__2. Mortgage Loan Repurchase Pursuant to the applicable
Purchase Agreement. (The Servicer hereby certifies that the
repurchase price has been credited to the appropriate
account held for the Trustee under the applicable Servicing
Agreement as provided in such Servicing Agreement.)
__3. Mortgage Loan Liquidated By _____________ (The Servicer
hereby certifies that all proceeds of foreclosure,
insurance, condemnation or other liquidation have been
finally received and credited to the appropriate account
held for the Trustee under the applicable Servicing
Agreement as provided in such Servicing Agreement.)
__4. Mortgage Loan in Foreclosure
Exh. 3-1
__5. Other (explain) ____________________________
If box 1, 2 or 3 above is checked, and if all or part of the
Custodial File was previously released to us, please release to us our
previous request and receipt on file with you, as well as any additional
documents in your possession relating to the specified Mortgage Loan.
If box 4 or 5 above is checked, upon our return of all of
the above documents to you as the Custodian, please acknowledge your receipt
by signing in the space indicated below, and returning this form if requested.
Capitalized terms used herein shall have the meaning
ascribed to them in the Custodial Agreement.
[____________________________]
(Servicer)
By: ___________________________________
Name:
Title:
Date:
Exh. 3-2
EXHIBIT 4
---------
FORM OF OPINION OF COUNSEL TO THE CUSTODIAN
-------------------------------------------
(Date)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Global Securities and Trust Services MSM 2006-11
Ladies and Gentlemen:
We have acted as counsel to Deutsche Bank Trust Company
Americas (the "Custodian") in connection with the execution and delivery of
that certain Custodial Agreement, dated as of July 1, 2006 (the "Agreement"),
among you, as the Purchaser, GMAC Mortgage Corporation, as the Servicer,
LaSalle Bank National Association, as the Trustee, ▇▇▇▇▇ Fargo Bank, National
Association, as the Master Servicer and Securities Administrator and Deutsche
Bank Trust Company Americas as the Custodian with respect to certain
conventional residential Mortgage Loans.
We have reviewed the Agreement and such other matters as we
have deemed appropriate in order to deliver the opinions contained herein.
In rendering the opinions expressed below, we have assumed,
without any independent investigation or verification of any kind, that you
are duly organized, validly existing and in good standing under the laws of
the respective jurisdiction of incorporation and have full power and authority
to execute, deliver and perform the Agreement, and that the execution,
delivery and performance of the Agreement by you has been duly authorized by
all requisite corporate action on the part of you and has been duly executed
and delivered by you.
Based upon the foregoing, it is our opinion that:
1. The Custodian is a banking corporation, duly organized,
validly existing and in good standing under the laws of the State of New York
with full right, power and authority to enter into, execute and deliver the
Agreement. The Custodian is eligible to act as custodian under the terms of
the Agreement.
2. The Agreement has been duly authorized, executed and
delivered by the Custodian and constitutes the legal, valid and binding
agreement of and is enforceable against
Exh. 4-1
the Custodian in accordance with its terms, subject to bankruptcy laws and
other similar laws of general application affecting rights of creditors and
subject to the application of the rules of equity, including those respecting
the availability of specific performance.
[We are members of the Bar of the State of ___________. We
do not express herein any opinion as to matters governed by any law other than
the law of the State of ___________, the laws of the State of __________
applicable to ___________ corporations and the federal law of the United
States of America.]
This opinion is given to you for your sole benefit, and no
other person or entity is entitled to rely hereon, except that the purchaser
or purchasers to which you initially and directly resell the Mortgage Loans
may rely on this opinion as if it were addressed to them as of its date.
Very truly yours,
Exh. 4-2
EXHIBIT 5
---------
FORM OF LOST NOTE AFFIDAVIT
---------------------------
I, as _________________________ (title) of Deutsche Bank
Trust Company Americas (the "Custodian"), am authorized to make this Lost Note
Affidavit on behalf of Deutsche Bank Trust Company Americas. In connection
with the administration of the Mortgage Loans held by Deutsche Bank Trust
Company Americas as Custodian on behalf of ____________ ("____") or the Trust
of such mortgage loans, as the case may be (the "Investor"), I (hereinafter
called "Deponent"), being duly sworn, depose and say that:
1. Custodian's address is:
[CUSTODIAN'S Address]
2. Custodian previously delivered to the Investor a signed
Trust Receipt with respect to the Mortgage Note referred to below;
3. Such Mortgage Note was endorsed or sold to the Investor
by _________________________ pursuant to the terms and provisions of a
____________________ Agreement dated and effective as of _________ ______,
____;
4. Such Mortgage Note is not outstanding pursuant to a
Request for Release of Documents;
5. Such Mortgage Note (hereinafter called the "Original")
has been lost;
6. Deponent has made or has caused to be made diligent
search for Original and has been unable to find or recover same;
7. The Custodian was the Custodian of the Original at the
time of loss; and
8. Deponent agrees that, if the Original should ever come
into Custodian's possession, custody or power, Custodian will immediately and
without consideration surrender Original to the Investor.
9. Attached hereto is a true and correct copy of the (i)
Mortgage Note, endorsed in blank by the Mortgagee, and (ii) [Mortgage][Deed of
Trust] with evidence of recording thereon which secures the Mortgage Note.
10. Deponent hereby agrees that the Custodian shall
indemnify and hold harmless the Purchaser, the Trust, the Servicer of the
related Mortgage Loan and their respective employees, officers, directors and
agents against any loss, liability or damage, including reasonable attorney's
fees, resulting from the unavailability of the Mortgage Note, including but
not limited to any loss, liability or damage arising from (i) any false
statement contained in this Lost Note Affidavit, (ii) any claim of any party
that it has already purchased a mortgage loan evidenced by the lost Mortgage
Note or any interest in such mortgage loan, (iii) any claim of any borrower
with respect to the existence of terms of a Mortgage Loan evidenced by the
lost
▇▇▇. ▇-▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, (▇▇) the issuance of new instrument in lieu thereof and (v) any
claim whether or not based upon or arising from honoring or refusing to honor
the Original when presented by anyone (items (i) through (iv) above are
hereinafter referred to as the "Losses") and (b) if required by any Rating
Agency in connection with placing such lost Mortgage Note into a
securitization transaction, shall obtain a surety bond from an insurer
acceptable to the applicable Rating Agency in an amount acceptable to such
Rating Agency to cover any Losses with respect to such lost Mortgage Note.
11. Capitalized terms used herein but not defined herein
have the meanings given them in the Custodial Agreement, dated as of July 1,
2006, between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc. and the Custodian.
12. This Lost Note Affidavit is intended to be relied on by
the Investor, its successors, and assigns and _______________________
represents and warrants that it has the authority to perform its obligations
under this Lost Note Affidavit.
EXECUTED THIS ____ day of _______, ____,
on behalf of the Custodian by:
_________________________________________
Signature
_________________________________________
Typed Name
On this _________ day of _______________________, ____,
before me appeared ____________________________________________, to me
personally known, who being duly sworn did say that she/he is the
______________________________ of ______________________, and that said Lost
Note Affidavit was signed and sealed on behalf of such corporation and said
_____________________________ acknowledged this instrument to be the free act
and deed of said corporation.
_______________________________________
Notary Public in and for the
State of _________________
My Commission expires: _______________
Exh. 5-2
EXHIBIT 6
---------
AUTHORIZED REPRESENTATIVES OF THE CUSTODIAN
-------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
Exh. 6-1
EXHIBIT 7
---------
AUTHORIZED REPRESENTATIVES OF THE PURCHASER
-------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
Exh. 7-1
EXHIBIT 8
---------
AUTHORIZED REPRESENTATIVES OF THE SERVICER
------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
Exh. 8-1
EXHIBIT 9
---------
AUTHORIZED REPRESENTATIVES OF THE SERVICER
------------------------------------------
NAME SPECIMEN SIGNATURE
---- ------------------
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
_________________________________ ______________________________________
Exh. 9-1
EXHIBIT 10
----------
MORTGAGE LOAN SCHEDULE
----------------------
[See Schedule 1 to the PSA]
Exh. 10-1
EXHIBIT 11
----------
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Custodian shall address,
at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------- --------------------------------------------------------------------------------------------
General Servicing Considerations
-------------------- ----------------------
Policies and procedures are instituted to monitor any
performance or other triggers and events of default in
1122(d)(1)(i) accordance with the transaction agreements.
-------------------- ----------------------
If any material servicing activities are outsourced to
third parties, policies and procedures are instituted to
monitor the third party's performance and compliance with
1122(d)(1)(ii) such servicing activities.
-------------------- ----------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained.
-------------------- ----------------------
A fidelity bond and errors and omissions policy is in
effect on the party participating in the servicing
function throughout the reporting period in the amount of
coverage required by and otherwise in accordance with the
1122(d)(1)(iv) terms of the transaction agreements.
-------------------- ----------------------
Cash Collection and Administration
-------------------- ----------------------
Payments on mortgage loans are deposited into the
appropriate custodial bank accounts and related bank
clearing accounts no more than two business days
following receipt, or such other number of days specified
1122(d)(2)(i) in the transaction agreements.
-------------------- ----------------------
Disbursements made via wire transfer on behalf of an
obligor or to an investor are made only by authorized
1122(d)(2)(ii) personnel.
-------------------- ----------------------
Advances of funds or guarantees regarding collections,
cash flows or distributions, and any interest or other
fees charged for such advances, are made, reviewed and
1122(d)(2)(iii) approved as specified in the transaction agreements.
-------------------- ----------------------
The related accounts for the transaction, such as cash
reserve accounts or accounts established as a form of
overcollateralization, are separately maintained (e.g.,
with respect to commingling of cash) as set forth in the
1122(d)(2)(iv) transaction agreements.
-------------------- ----------------------
Each custodial account is maintained at a federally
insured depository institution as set forth in the
transaction agreements. For purposes of this criterion,
"federally insured depository institution" with respect
to a foreign financial institution means a foreign
financial institution that meets the requirements of Rule
1122(d)(2)(v) 13k-1(b)(1) of the Securities Exchange Act.
-------------------- ----------------------
Unissued checks are safeguarded so as to prevent
1122(d)(2)(vi) unauthorized access.
-------------------- ----------------------
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts.
These reconciliations are (A) mathematically accurate;
(B) prepared within 30 calendar days after the bank
statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and
approved by someone other than the person who prepared
the reconciliation; and (D) contain explanations for
reconciling items. These reconciling items are resolved
within 90 calendar days of their original identification,
or such other number of days specified in the transaction
1122(d)(2)(vii) agreements.
-------------------- ----------------------
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SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------- --------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-------------------- ----------------------
Reports to investors, including those to be filed with
the Commission, are maintained in accordance with the
transaction agreements and applicable Commission
requirements. Specifically, such reports (A) are prepared
in accordance with timeframes and other terms set forth
in the transaction agreements; (B) provide information
calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission
as required by its rules and regulations; and (D) agree
with investors' or the trustee's records as to the total
unpaid principal balance and number of mortgage loans
1122(d)(3)(i) serviced by the Servicer.
-------------------- ----------------------
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and
1122(d)(3)(ii) other terms set forth in the transaction agreements.
-------------------- ----------------------
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such
other number of days specified in the transaction
1122(d)(3)(iii) agreements.
-------------------- ----------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or
1122(d)(3)(iv) custodial bank statements.
-------------------- ----------------------
Pool Asset Administration
-------------------- ----------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related X
1122(d)(4)(i) mortgage loan documents.
-------------------- ----------------------
Mortgage loan and related documents are safeguarded as X
1122(d)(4)(ii) required by the transaction agreements
-------------------- ----------------------
Any additions, removals or substitutions to the asset
pool are made, reviewed and approved in accordance with
any conditions or requirements in the transaction
1122(d)(4)(iii) agreements.
-------------------- ----------------------
Payments on mortgage loans, including any payoffs, made
in accordance with the related mortgage loan documents
are posted to the Servicer's obligor records maintained
no more than two business days after receipt, or such
other number of days specified in the transaction
agreements, and allocated to principal, interest or other
items (e.g., escrow) in accordance with the related
1122(d)(4)(iv) mortgage loan documents.
-------------------- ----------------------
The Servicer's records regarding the mortgage loans agree
with the Servicer's records with respect to an obligor's
1122(d)(4)(v) unpaid principal balance.
-------------------- ----------------------
Changes with respect to the terms or status of an
obligor's mortgage loans (e.g., loan modifications or
re-agings) are made, reviewed and approved by authorized
personnel in accordance with the transaction agreements
1122(d)(4)(vi) and related pool asset documents.
-------------------- ----------------------
Loss mitigation or recovery actions (e.g., forbearance
plans, modifications and deeds in lieu of foreclosure,
foreclosures and repossessions, as applicable) are
initiated, conducted and concluded in accordance with the
timeframes or other requirements established by the
1122(d)(4)(vii) transaction agreements.
-------------------- ----------------------
Records documenting collection efforts are maintained
during the period a mortgage loan is delinquent in
accordance with the transaction agreements. Such records
are maintained on at least a monthly basis, or such other
period specified in the transaction agreements, and
describe the entity's activities in monitoring delinquent
mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
1122(d)(4)(viii) unemployment).
-------------------- ----------------------
Adjustments to interest rates or rates of return for
mortgage loans with variable rates are computed based on
1122(d)(4)(ix) the related mortgage loan documents.
-------------------- ----------------------
-----------------------------------------------------------------------------------------------------------------
SERVICING CRITERIA APPLICABLE SERVICING
CRITERIA
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-------------------- --------------------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in
accordance with the obligor's mortgage loan documents, on
at least an annual basis, or such other period specified
in the transaction agreements; (B) interest on such funds
is paid, or credited, to obligors in accordance with
applicable mortgage loan documents and state laws; and
(C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage
loans, or such other number of days specified in the
1122(d)(4)(x) transaction agreements.
-------------------- ----------------------
Payments made on behalf of an obligor (such as tax or
insurance payments) are made on or before the related
penalty or expiration dates, as indicated on the
appropriate bills or notices for such payments, provided
that such support has been received by the servicer at
least 30 calendar days prior to these dates, or such
other number of days specified in the transaction
1122(d)(4)(xi) agreements.
-------------------- ----------------------
Any late payment penalties in connection with any payment
to be made on behalf of an obligor are paid from the
servicer's funds and not charged to the obligor, unless
the late payment was due to the obligor's error or
1122(d)(4)(xii) omission.
-------------------- ----------------------
Disbursements made on behalf of an obligor are posted
within two business days to the obligor's records
maintained by the servicer, or such other number of days
specified in the transaction
1122(d)(4)(xiii) agreements.
-------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are
recognized and recorded in accordance with the
1122(d)(4)(xiv) transaction agreements.
-------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation
1122(d)(4)(xv) AB, is maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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