Conveyance of Home Equity Loans. (a) As of the Cut-off Date, the Depositor hereby sells, transfers, assigns, sets over and conveys, without recourse, to the Issuer for the benefit of the Noteholders, the Certificateholders and the Credit Enhancer, subject to the terms of this Agreement, all of the Depositor's right, title and interest in and to (i) the Home Equity Loans (excluding the Additional Loans) and all principal collected and interest accrued on each such Home Equity Loan on and after the Cut-off Date; provided, however, that the Depositor reserves and retains all of its right, title and interest in and to principal (including Prepayments) collected and interest accrued on each such Home Equity Loan prior to the Cut-off Date, (ii) such amounts, including Eligible Investments, as from time to time may be held by the Indenture Trustee in any related Account, and by the Servicer in the related Collection Account or otherwise held by the Servicer in trust for the Noteholders or Certificateholders (except as otherwise provided herein), (iii) any Property, the ownership of which has been effected in the name of the Servicer on behalf of the Issuer as a result of foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and that has not been withdrawn from the Issuer and any related REO Proceeds, (iv) the rights, if any, of the Issuer in any Insurance Policies relating to the Home Equity Loans, (v) Net Liquidation Proceeds (but only to the extent that such Net Liquidation Proceeds do not exceed the Loan Balance of the related Home Equity Loan plus accrued and unpaid interest on such Home Equity Loan) with respect to any Liquidated Loan, (vi) the Policy and (vii) the Reserve Account. Additionally, in connection with such transfer and assignment pursuant to Section __ of the Loan Sale Agreement, the Depositor hereby assigns to the Issuer all of the Depositor's right, title and interest in its rights and benefits, but none of its obligations or burdens, under the Loan Sale Agreement, including without limitation, the Seller's rights under the Loan Purchase Agreement, and the delivery requirements, representations, warranties and the cure, repurchase or substitution obligations of the Originators under the Loan Purchase Agreement. The foregoing sale, transfer, assignment, setover and conveyance to the Issuer shall be made to the Indenture Trustee, on behalf of the Issuer, and each reference in this Agreement to such sale, transfer, assignment, set over and conveyance shall be construed accordingly. The foregoing items referred to herein as the "Trust Estate." (b) Pursuant to Section ____ of the Loan Purchase Agreement, each Originator has agreed to take the actions specified in Part I of Exhibit D attached hereto. (c) The Issuer, concurrently with the execution and delivery hereof, and effective immediately following the transfer of the Home Equity Loans or the Closing Date to the Indenture Trustee, does hereby assign and reconvey to the Depositor without recourse all right, title and interest in and to the Retained Interest. (d) The actions required pursuant to Part I of Exhibit D hereto are not, and shall not be construed to be, conditions subsequent; the parties hereto declaring that the sale of the Home Equity Loans to be made hereunder on the Closing Date shall be a completed, absolute and final sale. Although it is the intent of the parties to this Agreement that the conveyance of the Depositor's right, title and interest in and to the Home Equity Loans and other assets in the Trust Estate pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Owner Trustee for the benefit of the Securityholders a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Home Equity Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under application law.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Ucfc Acceptance Corp)
Conveyance of Home Equity Loans. (a) As The Depositor, ------------------------------- concurrently with the execution and delivery of the Cut-off Datethis Agreement, the Depositor does hereby sellsirrevocably transfer, transfersassign, assignssell, sets set over and conveys, without recourse, otherwise convey to the Issuer Trustee for the benefit of the Noteholders, the Certificateholders and the Credit Enhancer, Certificate Insurer without recourse (subject to the terms of this Agreement, all of the Depositor's right, title Sections 2.02 and interest in and to 2.05) (i) the Home Equity Loans (excluding the Additional Loans) and all principal collected and interest accrued on each such Home Equity Loan on and after the Cut-off Date; provided, however, that the Depositor reserves and retains all of its right, title and interest in and to principal each Home Equity Loan, including the Cut-Off Date Principal Balance, and all collections in respect thereof received on or after the Cut-Off Date; (including Prepaymentsii) collected and interest accrued on each property which secured such Home Equity Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Home Equity Loans; (iv) all proceeds of any of the foregoing; and (v) the Depositor's rights under the Purchase Agreement with respect to the representations and warranties of the Seller thereunder together with all rights of the Depositor to require the Seller to cure any breach thereof or to repurchase or substitute for any affected Home Equity Loan in accordance with the Purchase Agreement. In addition, on or prior to the Closing Date, the Seller shall cause the Certificate Insurer to deliver the Certificate Insurance Policy to the Trustee. On or prior to the Closing Date (with respect to items (i), (ii) and (iii) below) and within 90 days of an Assignment Event (with respect to items (iv), (v) and (vi) below), the Seller shall deliver to the Trustee, the following documents or instruments with respect to each Home Equity Loan (the "Related Documents") and on or prior to the Closing Date the Seller shall deliver to the Trustee the Home Equity Loan Schedule in computer readable format:
(i) the original Mortgage Note, endorsed in blank, with all intervening endorsements showing a complete chain of title from the originator of such Home Equity Loan to the Seller or a copy of such original Mortgage Note with an accompanying Lost Note Affidavit;
(ii) the original Mortgage, with evidence of recording thereon, provided that if the original Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller shall deliver to the Trustee a copy of such original Mortgage, together with a certificate of the Seller certifying that such original Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered the original recorded Mortgage to the Trustee promptly upon receipt thereof;
(iii) the original Assignment of Mortgage, from the Seller in blank or to "Norwest Bank Minnesota, National Association, as Trustee", which assignment shall be in form and substance acceptable for recording;
(iv) the original attorney's opinion of title or the original policy of title insurance, provided that if any such original policy of title insurance has not yet been received by the Seller, the Seller shall deliver to the Trustee a copy of such policy or a title insurance binder or commitment for the issuance of such policy;
(v) originals of all intervening assignments of Mortgage, with evidence of recording thereon, showing a complete chain of title from the originator to the Seller, provided that if any such original intervening assignment of Mortgage has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller shall deliver to the Trustee a copy of such original assignment of Mortgage, together with a certificate of the Seller certifying that such original assignment of Mortgage has been so delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered any such original assignments to the Trustee promptly upon receipt thereof; and
(vi) originals of all assumption and modification agreements, if any, provided that if any such agreement has been delivered for recording to the appropriate public recording office of the jurisdiction in which the Mortgaged Property is located but has not yet been returned to the Seller by such recording office, the Seller shall deliver to the Trustee a copy of such original agreement, together with a certificate of the Seller certifying that such original agreement has been so delivered to such recording office; in all such instances, the Seller shall deliver or cause to be delivered any such original agreements to the Trustee promptly upon receipt thereof. On the Closing Date (i) no more than 5% of the Home Equity Loans (by Cut-off DateOff Date Principal Balance) shall have Lost Note Affidavits in lieu of original Mortgage Notes and (ii) the Seller shall deliver to the Trustee a copy of the original Mortgage Note for each Home Equity Loan with respect to which a Lost Note Affidavit is delivered. Except as herein provided, the Master Servicer shall, as custodian and for the benefit of the Trustee, the Certificateholders and the Certificate Insurer, be entitled to maintain possession of the foregoing documents and instruments described in clauses (iv), (v) and (vi) above and shall not be required to deliver any of them to the Trustee. In the event, however, that possession of any such documents or instruments is required by any Person (including the Trustee) acting as successor Master Servicer pursuant to Section 8.02 in order to carry out the duties of the Master Servicer hereunder, then such successor master servicer shall be entitled to request delivery, at the expense of the Master Servicer, of such documents or instruments by the Master Servicer and to retain such documents or instruments for servicing purposes; provided that the Trustee or such successor master servicers shall maintain such documents at such offices as may be required by any regulatory body having jurisdiction over such Home Equity Loans. The Seller hereby confirms to the Trustee that it has made the appropriate entries in its general accounting records, to indicate that such Home Equity Loans have been transferred to the Trustee and constitute part of the Trust in accordance with the terms of the trust created hereunder. The Trustee agrees, for the benefit of Certificateholders and the Certificate Insurer, on or prior to the Closing Date to execute and deliver to the Seller, the Depositor, the Certificate Insurer and the Master Servicer an acknowledgment of receipt, with respect to each Home Equity Loan, of the original Mortgage Note (with any exceptions noted), (in the form of Exhibit M-1) and declares that it will hold such instruments and any amendments, replacements or supplements thereto, as well as any other assets included in the definition of Trust and delivered to the Trustee, as Trustee in trust upon and subject to the conditions set forth herein for the benefit of the Certificateholders and the Certificate Insurer. The Trustee agrees, for the benefit of Certificateholders and the Certificate Insurer, within forty-five (45) days following (a) the Closing Date with respect to the Mortgages and Assignments of Mortgage and (b) the receipt of the remainder of the Mortgage Files after an Assignment Event, to review (or cause to be reviewed) each Mortgage File and to deliver to the Seller, the Depositor, the Certificate Insurer and the Master Servicer a certification (in the form of Exhibit M-2) to the effect that, as to each Home Equity Loan listed in the Home Equity Loan Schedule (other than any Home Equity Loan paid in full or any Home Equity Loan specifically identified in the certification as not covered by such certification), (i) all documents constituting part of such Mortgage File required to be delivered to it pursuant to Section 2.01 are in its possession, (ii) such amountsdocuments have been reviewed by it, including Eligible Investmentsappear to be what they purport to be and relate to such Home Equity Loan, (iii) based on its examination and only as from time to time may be held by the Indenture Trustee in any related Accountforegoing, and by the Servicer information set forth in the related Collection Account or otherwise held by the Servicer in trust for the Noteholders or Certificateholders Home Equity Loan Schedule which corresponds to items (except as otherwise provided hereinii), (iii) any Property, the ownership of which has been effected in the name of the Servicer on behalf of the Issuer as a result of foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and that has not been withdrawn from the Issuer and any related REO Proceeds), (iv), (v), (vii) the rights, if any, and (viii) of the Issuer definition of "Home Equity Loan Schedule" accurately reflects information set forth in the Mortgage File. If within such 45-day period, the Trustee finds any Insurance Policies relating document constituting a part of the Mortgage File not to have been executed or received or to be unrelated to the Home Equity Loans, (v) Net Liquidation Proceeds (but only to the extent that such Net Liquidation Proceeds do not exceed the Loan Balance of the related Loans identified in said Home Equity Loan plus accrued Schedule or, if in the course of its review, the Trustee determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall notify the parties, and unpaid interest on the Seller shall have a period of one hundred thirty-five (135) days after such notice (subject to Section 2.02) within which to correct or cure any such defect or to purchase such Home Equity Loan at the related Purchase Price or substitute an Eligible Substitute Home Equity Loan therefor pursuant to Section 2.06. On or prior to two hundred ten (210) days following the Closing Date (but no earlier than 135 days following the Closing Date), the Trustee shall deliver (or cause to be delivered) to the Seller, the Depositor, the Certificate Insurer and the Master Servicer a certification (in the form of Exhibit M-3) to the effect that, as to each Home Equity Loan listed in the Home Equity Loan Schedule (other than any Home Equity Loan paid in full or any Home Equity Loan specifically identified in such certification as not covered by such certification), and as to any document noted in an exception included in the Trustee's initial certification, (i) all documents constituting part of such Mortgage File required to be delivered to it pursuant to Section 2.01 are in its possession, (ii) such documents have been reviewed by it, appear to be what they purport to be and relate to such Home Equity Loan) with respect to any Liquidated Loan, (viiii) based on its examination and only as to the Policy and foregoing, the information set forth in the Home Equity Loan Schedule which corresponds to items (ii), (iii), (iv), (v), (vii) the Reserve Account. Additionally, in connection with such transfer and assignment pursuant to Section __ (viii) of the definition of "Home Equity Loan Sale Agreement, Schedule" accurately reflects information set forth in the Depositor hereby assigns to the Issuer all Mortgage File. Within 90 days of the Depositor's right, title and interest in its rights and benefits, but none of its obligations or burdens, under the Loan Sale Agreement, including without limitationan Assignment Event, the Seller's rights under , at its own expense, shall either (i) cause the Loan Purchase Agreement, Master Servicer to record the Assignments of Mortgage in favor of the Trustee in the appropriate real property or other records (which may be a blanket assignment if permitted by applicable law) or (ii) deliver to the Trustee and the delivery requirements, representations, warranties and the cure, repurchase or substitution obligations Certificate Insurer an Opinion of the Originators under the Loan Purchase Agreement. The foregoing sale, transfer, assignment, setover and conveyance Counsel reasonably acceptable to the Issuer shall be made Certificate Insurer to the Indenture effect that recording is not required to protect the Trustee, on behalf of the Issuer, and each reference in this Agreement to such sale, transfer, assignment, set over and conveyance shall be construed accordingly. The foregoing items referred to herein as the "Trust Estate."
(b) Pursuant to Section ____ of the Loan Purchase Agreement, each Originator has agreed to take the actions specified in Part I of Exhibit D attached hereto.
(c) The Issuer, concurrently with the execution and delivery hereof, and effective immediately following the transfer of the Home Equity Loans or the Closing Date to the Indenture Trustee, does hereby assign and reconvey to the Depositor without recourse all 's right, title and interest in and to the Retained Interest.
(d) The actions required pursuant to Part I of Exhibit D hereto are notrelated Home Equity Loan or, and shall not be construed to be, conditions subsequent; in the parties hereto declaring that event a court should recharacterize the sale of the Home Equity Loans as a financing, to perfect a first priority security interest in favor of the Trustee in the related Home Equity Loan. With respect to any Assignment of Mortgage as to which the related recording information is unavailable within 90 days of an Assignment Event, such Assignment of Mortgage shall be submitted for recording within 60 days after receipt of such information but in no event later than six months from the occurrence of an Assignment Event. Upon receipt thereof, the Trustee shall retain a copy of each Assignment of Mortgage submitted by the Seller for recording. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Seller, at its own expense, shall promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Seller shall be required to submit each such Assignment of Mortgage for recording. The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be made hereunder on the Closing Date shall what it purports to be, and, where applicable, that it purports to be a completed, absolute and final salerecorded. Although it is the intent of the The parties to this Agreement hereto intend that the conveyance transactions set forth herein constitute a sale and not a pledge by the Depositor to the Trust of all the Depositor's right, title and interest in and to the Home Equity Loans and other assets in property as and to the Trust Estate pursuant to this Agreement shall constitute extent described above. In the event the transactions set forth herein are characterized as a purchase and sale pledge and not a loansale, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted hereby grants to the Owner Trustee for the benefit of the Securityholders Trust a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Home Equity Loans and such other assets in property, to secure all of the Trust EstateDepositor's obligations hereunder, and that this Agreement shall constitute a security agreement under application applicable law. The Depositor agrees to take or cause to be taken such actions and to execute such documents, including the filing of any continuation statements with respect to the UCC-1 financing statements filed with respect to the Home Equity Loans by the Trust on the Closing Date, and any amendments thereto required to reflect a change in the name or corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor, as are necessary to perfect and protect the Trust's interests in each Home Equity Loan and in the proceeds thereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Morgan Stanley Capital I Inc Home Eq Ln as Bk Cer Ser 1999-2)
Conveyance of Home Equity Loans. (a) As In consideration ------------------------------- of the Cut-off Date, Issuer's delivery to or upon the Depositor hereby sells, transfers, assigns, sets over order of the Seller on the Closing Date of the net proceeds from the sale of the Notes and conveys, without recourse, the Certificates and the other amounts to be distributed from time to time to the Issuer for the benefit of the Noteholders, the Certificateholders and the Credit Enhancer, subject to Seller in accordance with the terms of this Agreement, the Seller does hereby sell, transfer, assign, set over and otherwise convey to the Issuer, without recourse (subject to the obligations herein):
(A) all of the Depositor's right, title and interest of the Seller in and to (i) the Home Equity Loans (excluding the Additional Loans) and all principal collected and interest accrued on each such Home Equity Loan on and after the Cut-off Date; provided, however, that the Depositor reserves and retains all of its right, title and interest in and to principal (including Prepayments) collected and interest accrued on each such Home Equity Loan prior to the Cut-off Date, (ii) such amounts, including Eligible Investments, as from time to time may be held by the Indenture Trustee in any related Account, and by the Servicer in the related Collection Account or otherwise held by the Servicer in trust for the Noteholders or Certificateholders (except as otherwise provided herein), (iii) any Property, the ownership of which has been effected in the name of the Servicer on behalf of the Issuer as a result of foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and that has not been withdrawn from the Issuer and any related REO Proceeds, (iv) the rights, if any, of the Issuer in any Insurance Policies relating to the Home Equity Loans, and all moneys received thereon, on or after the Cutoff Date;
(vB) Net Liquidation Proceeds (but only to the extent that such Net Liquidation Proceeds do not exceed the Loan Balance of the related Home Equity Loan plus accrued and unpaid interest on such Home Equity Loan) with respect to any Liquidated Loan, (vi) the Policy and (vii) the Reserve Account. Additionally, in connection with such transfer and assignment pursuant to Section __ of the Loan Sale Agreement, the Depositor hereby assigns to the Issuer all of the Depositor's right, title and interest in its rights and benefits, but none of its obligations or burdens, under the Loan Sale Agreement, including without limitation, the Seller's rights under the Loan Purchase Agreement, and the delivery requirements, representations, warranties and the cure, repurchase or substitution obligations of the Originators under Seller in the Loan Purchase Agreement. The foregoing sale, transfer, assignment, setover and conveyance security interests in the Mortgaged Properties granted by Mortgagors pursuant to the Issuer shall be made to the Indenture Trustee, on behalf of the Issuer, and each reference in this Agreement to such sale, transfer, assignment, set over and conveyance shall be construed accordingly. The foregoing items referred to herein as the "Trust Estate."
(b) Pursuant to Section ____ of the Loan Purchase Agreement, each Originator has agreed to take the actions specified in Part I of Exhibit D attached hereto.
(c) The Issuer, concurrently with the execution and delivery hereof, and effective immediately following the transfer of the Home Equity Loans or and any other interest of the Closing Date Seller in the Mortgaged Properties;
(C) the interest of the Seller in any proceeds with respect to the Indenture TrusteeHome Equity Loans from claims on any physical damage, does hereby assign and reconvey to the Depositor without recourse theft, credit life or disability insurance policies covering Mortgaged Properties or Mortgagors;
(D) all right, title and interest in all funds on deposit from time to time in the Certificate Distribution Account, in the Trust Accounts, including the Reserve Account Initial Deposit, and to the Retained Interest.in all investments and proceeds thereof (including all income thereon); and
(dE) the proceeds of any and all of the foregoing. In connection with such transfer, assignment and conveyance by the Seller, the Seller shall deliver to, and deposit with the Trustee, on or before the Closing Date, the following documents or instruments with respect to each Home Equity Loan (the "Related Documents"):
(i) The actions required pursuant to Part I original Mortgage Note, with all prior and intervening endorsements showing a complete chain of Exhibit D hereto are not, and shall not be construed to be, conditions subsequent; endorsements from the parties hereto declaring that the sale originator of the Home Equity Loan to the Person so endorsing the Home Equity Loan to the Trustee, endorsed by such Person "Pay to the order of ____________________, as Trustee for Home Equity and Home Improvement Loan Trusts 199_-_ without recourse" and signed, by facsimile or manual signature, in the name of the Seller by a Responsible Officer;
(ii) Any of: (1) the original Mortgage, and related power of attorney, if any, with evidence of recording thereon, (2) a copy of the Mortgage and related power of attorney, if any, certified as a true copy of the original Mortgage or power of attorney by a Responsible Officer of the Seller or by the closing attorney by facsimile or manual signature, or by an officer of the title insurer or agent of the title insurer that issued the related title insurance policy if the original has been transmitted for recording until such time as the original is returned by the public recording office or (3) a copy of the Mortgage and related power of attorney, if any, certified by the public recording office;
(iii) The original Assignment of Mortgage in recordable form, to "__________________, as Trustee for Home Equity and Home Improvement Loan Trusts 199_-_". Any such Assignments of Mortgage may be made by blanket assignments for Home Equity Loans secured by the Mortgaged Properties in the same county, if permitted by applicable law;
(iv) The original lender's policy of title insurance or a true copy thereof, or if such original lender's title insurance policy has been lost, a copy thereof certified by the appropriate title insurer to be made hereunder on true and complete, or if such lender's title insurance policy has not been issued as of the Closing Date shall be Date, a completedmarked up commitment (binder) to issue such policy;
(v) All intervening assignments, absolute and final sale. Although it is if any, showing a complete chain of assignments from the intent originator to the Seller, including any recorded warehousing assignments, with evidence of recording thereon, certified by a Responsible Officer of the parties Seller by facsimile or manual signature as a true copy of the original of such intervening assignments; and
(vi) Originals of all assumption, written assurance, substitution and modification agreements, if any. In instances where the original recorded Mortgage cannot be delivered by the Seller to the Trustee prior to or concurrently with the execution and delivery of this Agreement due to a delay in connection with recording, the Seller may in lieu of delivering such original recorded Mortgage, deliver to the Trustee a copy thereof, provided that the conveyance Seller certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor. In all such instances, the Seller will deliver or cause to be delivered the original recorded Mortgage to the Trustee promptly upon receipt of the Depositor's rightoriginal recorded Mortgage but in no event later than one year after the Closing Date.
(b) The Trustee agrees, title for the benefit of the Noteholders and interest the Certificateholders, within 90 days after execution and delivery of this Agreement, to review the Mortgage Files to ascertain that all required documents set forth in paragraphs (i) - (v) of Section 2.1(a) have been executed and received, and that the Mortgage Notes have been endorsed as set forth in Section 2.1(a), and that such documents relate to the Home Equity Loans identified on the Home Equity Loan Schedule and other assets in so doing the Trust Estate pursuant Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Trustee finds any document constituting a part of a Mortgage File not to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed have been executed or received or to be a loan, it is the intent of the parties unrelated to this Agreement that the Depositor shall be deemed to have granted to the Owner Trustee for the benefit of the Securityholders a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Home Equity Loans and other assets identified in said Home Equity Loan Schedule or, if in the Trust Estatecourse of its review, the Trustee determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall promptly upon the conclusion of its review notify the Seller, and the Seller shall have a period of 90 days after such notice within which to correct or cure any such defect.
(c) The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in Section 2.1(b). Without limiting the effect of the preceding sentence, in reviewing any Mortgage File pursuant to such subsection, the Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, but shall only be required to determine whether a document has been executed, that this Agreement it appears to be what it purports to be, and, where applicable, that it purports to be recorded, but shall constitute a security agreement under application lawnot be required to determine whether any Person executing any document is authorized to do so or whether any signature thereon is genuine.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Conveyance of Home Equity Loans. (a) As of the Cut-off Date, the Depositor hereby sells, transfers, assigns, sets over and conveys, without recourse, to the Issuer for the benefit of the Noteholders, the Certificateholders and the Credit Enhancer, subject to the terms of this Agreement, all of the The Depositor's right, title and interest in and to (i) the Home Equity Loans (excluding the Additional Loans) and all principal collected and interest accrued on each such Home Equity Loan on and after the Cut-off Date; provided, however, that the Depositor reserves and retains all of its right, title and interest in and to principal (including Prepayments) collected and interest accrued on each such Home Equity Loan prior to the Cut-off Date, (ii) such amounts, including Eligible Investments, as from time to time may be held by the Indenture Trustee in any related Account, and by the Servicer in the related Collection Account or otherwise held by the Servicer in trust for the Noteholders or Certificateholders (except as otherwise provided herein), (iii) any Property, the ownership of which has been effected in the name of the Servicer on behalf of the Issuer as a result of foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and that has not been withdrawn from the Issuer and any related REO Proceeds, (iv) the rights, if any, of the Issuer in any Insurance Policies relating to the Home Equity Loans, (v) Net Liquidation Proceeds (but only to the extent that such Net Liquidation Proceeds do not exceed the Loan Balance of the related Home Equity Loan plus accrued and unpaid interest on such Home Equity Loan) with respect to any Liquidated Loan, (vi) the Policy and (vii) the Reserve Account. Additionally, in connection with such transfer and assignment pursuant to Section __ of the Loan Sale Agreement, the Depositor hereby assigns to the Issuer all of the Depositor's right, title and interest in its rights and benefits, but none of its obligations or burdens, under the Loan Sale Agreement, including without limitation, the Seller's rights under the Loan Purchase Agreement, and the delivery requirements, representations, warranties and the cure, repurchase or substitution obligations of the Originators under the Loan Purchase Agreement. The foregoing sale, transfer, assignment, setover and conveyance to the Issuer shall be made to the Indenture Trustee, on behalf of the Issuer, and each reference in this Agreement to such sale, transfer, assignment, set over and conveyance shall be construed accordingly. The foregoing items referred to herein as the "Trust Estate."
(b) Pursuant to Section ____ of the Loan Purchase Agreement, each Originator has agreed to take the actions specified in Part I of Exhibit D attached hereto.
(c) The Issuer, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and effective immediately following otherwise convey to the transfer Trustee without recourse for the benefit of the Home Equity Loans or Certificateholders all the Closing Date to the Indenture Trustee, does hereby assign and reconvey to the Depositor without recourse all right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Retained Interest.
(d) The actions required pursuant to Part I of Exhibit D hereto are not, and shall not be construed to be, conditions subsequent; the parties hereto declaring that the sale of Original Home Equity Loans identified on the Home Equity Loans to be made hereunder on Loan Schedule, the Closing Date shall be a completed, absolute and final sale. Although it is the intent rights of the parties to this Depositor under the Mortgage Loan Purchase Agreement that the conveyance of (other than the Depositor's rightrights under Sections 17 and 18 thereof), title and all other assets included or to be included in REMIC I. Such assignment includes all interest and principal received by the Depositor or any Master Servicer on or with respect to the Original Home Equity Loans (other than payments of principal and interest in due on such Home Equity Loans on or before the Cut-off Date). The Depositor herewith delivers to each of the Trustee and to the Trust Administrator an executed copy of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Original Home Equity Loans and the other assets property specified in this Section 2.01 from the Trust Estate Depositor to the Trustee pursuant to this Agreement shall constitute is held or deemed not to be a purchase and sale and not a loan, in the event that such conveyance or is held or deemed to be a pledge of security for a loan, it is the intent Depositor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement that and that, in such event, (i) the Depositor shall be deemed to have granted and does hereby grant to the Owner Trustee for the benefit as of the Securityholders Closing Date a perfected, first priority perfected security interest in all of the Depositor's entire right, title and interest in, of the Depositor in and to and under the Original Home Equity Loans and all other assets in property conveyed to the Trust EstateFund pursuant to this Section 2.01 and all proceeds thereof, and that (ii) this Agreement shall constitute a security agreement under application applicable law.. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee, or to the Custodian as the agent of the Trustee, the following documents or instruments with respect to each Original Home Equity Loan so transferred and assigned the following documents or instruments with respect to each Subsequent Home Equity Loan (each, a "Mortgage File"):
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Conveyance of Home Equity Loans. (a) As of the Cut-off Date, the Depositor hereby sells, transfers, assigns, sets over and conveys, without recourse, to the Issuer for the benefit of the Noteholders, the Certificateholders and the Credit Enhancer, subject to the terms of this Agreement, all of the The Depositor's right, title and interest in and to (i) the Home Equity Loans (excluding the Additional Loans) and all principal collected and interest accrued on each such Home Equity Loan on and after the Cut-off Date; provided, however, that the Depositor reserves and retains all of its right, title and interest in and to principal (including Prepayments) collected and interest accrued on each such Home Equity Loan prior to the Cut-off Date, (ii) such amounts, including Eligible Investments, as from time to time may be held by the Indenture Trustee in any related Account, and by the Servicer in the related Collection Account or otherwise held by the Servicer in trust for the Noteholders or Certificateholders (except as otherwise provided herein), (iii) any Property, the ownership of which has been effected in the name of the Servicer on behalf of the Issuer as a result of foreclosure or acceptance by the Servicer of a deed in lieu of foreclosure and that has not been withdrawn from the Issuer and any related REO Proceeds, (iv) the rights, if any, of the Issuer in any Insurance Policies relating to the Home Equity Loans, (v) Net Liquidation Proceeds (but only to the extent that such Net Liquidation Proceeds do not exceed the Loan Balance of the related Home Equity Loan plus accrued and unpaid interest on such Home Equity Loan) with respect to any Liquidated Loan, (vi) the Policy and (vii) the Reserve Account. Additionally, in connection with such transfer and assignment pursuant to Section __ of the Loan Sale Agreement, the Depositor hereby assigns to the Issuer all of the Depositor's right, title and interest in its rights and benefits, but none of its obligations or burdens, under the Loan Sale Agreement, including without limitation, the Seller's rights under the Loan Purchase Agreement, and the delivery requirements, representations, warranties and the cure, repurchase or substitution obligations of the Originators under the Loan Purchase Agreement. The foregoing sale, transfer, assignment, setover and conveyance to the Issuer shall be made to the Indenture Trustee, on behalf of the Issuer, and each reference in this Agreement to such sale, transfer, assignment, set over and conveyance shall be construed accordingly. The foregoing items referred to herein as the "Trust Estate."
(b) Pursuant to Section ____ of the Loan Purchase Agreement, each Originator has agreed to take the actions specified in Part I of Exhibit D attached hereto.
(c) The Issuer, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and effective immediately following otherwise convey to the transfer Trustee without recourse for the benefit of the Home Equity Loans or Certificateholders all the Closing Date to the Indenture Trustee, does hereby assign and reconvey to the Depositor without recourse all right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Retained Interest.
(d) The actions required pursuant to Part I of Exhibit D hereto are not, and shall not be construed to be, conditions subsequent; the parties hereto declaring that the sale of Original Home Equity Loans identified on the Home Equity Loans to be made hereunder on Loan Schedule, the Closing Date shall be a completed, absolute and final sale. Although it is the intent rights of the parties to this Depositor under the Mortgage Loan Purchase Agreement that the conveyance of (other than the Depositor's rightrights under Sections 17 and 18 thereof), title and all other assets included or to be included in REMIC I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Original Home Equity Loans (other than payments of principal and interest in and due on such Home Equity Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement. If the assignment and transfer of the Original Home Equity Loans and the Subsequent Home Equity Loans and the other assets property specified in Sections 2.01 and 2.11 from the Trust Estate Depositor to the Trustee pursuant to this Agreement shall constitute is held or deemed not to be a purchase and sale and not a loan, in the event that such conveyance or is held or deemed to be a pledge of security for a loan, it is the intent Depositor intends that the rights and obligations of the parties shall be established pursuant to the terms of this Agreement that and that, in such event, (i) the Depositor shall be deemed to have granted and does hereby grant to the Owner Trustee for the benefit as of the Securityholders Closing Date and each Subsequent Transfer Date a perfected, first priority perfected security interest in all of the Depositor's entire right, title and interest in, of the Depositor in and to and under the Original Home Equity Loans and the related Subsequent Home Equity Loans and all other assets in property conveyed to the Trust EstateFund pursuant to this Sections 2.01 and 2.11 and all proceeds thereof, and that (ii) this Agreement shall constitute a security agreement under application applicable law. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Original Home Equity Loan so transferred and assigned and in connection with the transfer and assignment of each Subsequent Home Equity Loan, will deliver or will deliver to, and deposit with, the Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Subsequent Home Equity Loan (each, a "Mortgage File"):
(a) the original Mortgage Note, endorsed in blank or in the following form: "Pay to the order of Bankers Trust Company of California, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee or a copy of such original Mortgage Note with an accompanying lost note affidavit executed by the Seller;
(b) the original Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(c) an original Assignment of the Mortgage in blank;
(d) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee or as contemplated by the immediately preceding clause (c);
(e) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(f) the original lender's title insurance policy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. On the Closing Date (i) no more than 1% of the Original Home Equity Loans by Scheduled Principal Balance as of the Cut-off Date may have lost note affidavits in lieu of the original Mortgage Notes and (ii) the Seller shall deliver to the Trustee a copy of the original Mortgage Note for each Home Equity Loan with respect to which a lost note affidavit is delivered. The Master Servicer, in its capacity as Seller, shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of the Closing Date (or for a Subsequent Home Equity Loan, the Subsequent Transfer Date) and the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund, the Trustee or the Depositor, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(c) and (d) above and shall execute each original Assignment in the following form: "Bankers Trust Company of California, N.A., as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer, in its capacity as Seller, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be completed and submitted for recording with respect to any Home Equity Loan if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such Assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note; provided further, however, notwithstanding the delivery of any opinion of counsel, each assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (iv) if the Seller is not the Master Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments of Mortgage, such expense will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. If any of the documents referred to in Sections 2.01(b), (c) or (d) above has as of the Closing Date (or for a Subsequent Home Equity Loan, as of the Subsequent Transfer Date) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Seller, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(f) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Home Equity Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Home Equity Loan. All original documents relating to the Home Equity Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Series 2000 Lb1)
