Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest on, and Prepayment Penalty Amounts paid with respect to, a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the Depositor in, but none of the obligations of the Depositor with respect to, the Mortgage Loan Purchase Agreement, including but not limited to Depositor's rights and obligations pursuant to each of the Servicing Agreements (noting that the Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Seller, and the Depositor, (viii) [Reserved] and (ix) any proceeds of the foregoing. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Seller or the Depositor or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the Depositor shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. In addition to the foregoing, the Depositor shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section 6.01(a) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor; (ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to the Depositor or the Depositor's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (including the Assignment); (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the Depositor or the Depositor's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the Depositor's property, assets, rights or estate; and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. 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 Mortgage Loans and other assets in the Trust 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 Trustee a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Seller, on behalf of the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2004-4, without recourse (in each case, with all necessary intervening endorsements as applicable); (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the Depositor that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2004-4)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the Depositor in, but none of the obligations of the Depositor with respect to, the Mortgage Loan Purchase Agreement, including but not limited to Depositor's ’s rights and obligations pursuant to each of the Servicing Agreements (noting that the Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Seller, and the Depositor, (viii) ~~[Reserved]~~ if any of the Mortgage Loans identified on the Mortgage Loan Schedule are MLCC Mortgage Loans, its related rights under the MLCC Limited Purpose Surety Bond and (ix) any proceeds of the foregoing. The Seller hereby consents to such transfer of the Depositor's ’s right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Seller or the Depositor or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's’s, the Trust's ’s and the Certificateholders' ’ sole remedy for any breach thereof. At the request of the Trustee, the Depositor shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Seller hereby consents to such transfer of the Depositor's ’s right, title and interest as set forth above. In addition to the foregoing, the Depositor shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section 6.01(a) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor; ; (ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to the Depositor or the Depositor's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the Depositor or the Depositor's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the Depositor's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the Depositor's ’s right, title and interest in and to the Mortgage Loans and other assets in the Trust 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 Trustee a first priority perfected security interest in all of the Depositor's ’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Seller, on behalf of the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust ~~2004~~2003-45, without recourse (in each case, with all necessary intervening endorsements as applicable); ; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the Depositor that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, ~~each~~ the Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2003 5)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest on, and Prepayment Penalty Amounts paid with respect to, a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer ~~Account, the Master Servicer in the Master Servicer Collection~~ Account and ~~the Trustee~~ as may be held in the Distribution Account (but, in each case, excluding all investment earnings thereon) for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the Depositor in, but none of the obligations of the Depositor with respect to, the Mortgage Loan Purchase Agreement, including but not limited to Depositor's ’s rights and obligations pursuant to each of the Servicing Agreements (noting that the Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Seller, and the Depositor, (viii) ~~[Reserved]~~ the Final Maturity Reserve Account, the Yield Maintenance Account and the Auction Proceeds Account and (ix) any proceeds of the foregoing. The Seller hereby consents to such transfer of the Depositor's ’s right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Seller or the Depositor or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's’s, the Trust's ’s and the Certificateholders' ’ sole remedy for any breach thereof. At the request of the Trustee, the Depositor shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Seller hereby consents to such transfer of the Depositor's ’s right, title and interest as set forth above. In addition to the foregoing, the Depositor shall deliver to the ~~Trustee~~ Securities Administrator on the Closing Date, for deposit into the Distribution Account, the sum of $~~100.00~~150.00, to be distributed in accordance with the last paragraph of Section 6.01(a) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § 2701A, et seq. (the "“Securitization Act"”), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor; ; (ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to the Depositor or the Depositor's ’s property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the Depositor or the Depositor's ’s property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the Depositor's ’s property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "“securitization transaction" ” as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the Depositor's ’s right, title and interest in and to the Mortgage Loans and other assets in the Trust 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 Trustee a first priority perfected security interest in all of the Depositor's ’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Seller, on behalf of the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the ~~Trustee, and/or any~~ Custodian acting on the Trustee's ’s behalf~~, if applicable~~, the following documents or instruments with respect to each Mortgage Loan (each a "“Mortgage File"”) so transferred and assigned: (i) with respect to each Mortgage Loan, (A) the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of ~~Deutsche~~ U.S. Bank National ~~Trust Company~~Association, as Trustee for Xxxxxxxxx Mortgage Securities Trust ~~2004~~2005-4, without recourse (in each case, with all necessary intervening endorsements as applicable)) or (B) Lost Note Affidavits in lieu thereof; provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans which represent less than or equal to 2% of the Scheduled Principal Balance of the Mortgage Loans as of the Cut-off Date; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) as agent for the Trustee on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's ’s Certificate of the Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) as agent for the Trustee is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the ~~Depositor~~ Seller that an original recorded Security Instrument is not required to enforce the Trustee's ’s interest in the Mortgage Loan; ; (iv) the original or a copy of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's ’s Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or the Custodian as its ~~custodian~~Agent) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "“Intervening Assignment"”), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's ’s interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, certificate or ~~certificate~~policy number, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's ’s opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's ’s Certificate of the Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. Notwithstanding the above, the Mortgage files to be delivered and deposited with the Trustee, or the Custodian for the Mortgage Loans serviced by Xxxxx Fargo Bank, N.A. (“WFB”), shall include only the documents or instruments referred to in (i), (ii), (iv) and (v) above and the other documents identified above shall be retained and held by WFB, as servicer, as provided in the Reconstituted Servicing Agreement dated as of December 1, 2005, between the Seller and WFB, and acknowledged by the Master Servicer and the Trustee (the “WFB Servicing Agreement”); provided that within 60 days of the occurrence of a Document Transfer Event, WFB, as Servicer shall deliver or cause to be delivered to and deposited with the Trustee, or the Custodian, the documents and instruments so retained by it consisting of the documents or instruments referred to in (iii) and (vi) – (x) above. In addition to the foregoing, the Mortgage Files to be delivered and deposited with the Trustee, or the Custodian as its agent for the Mortgage Loans serviced by Bank of America (“BofA”), shall include only the documents or instruments referred to in (i) and (ii) above and the other documents identified above shall be delivered and deposited with the Trustee, or the Custodian as its agent for the Mortgage Loans serviced by BofA no later than 365 days after the Closing Date. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's ’s interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Securities Trust 2005-4)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The ~~Depositor~~ Seller concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the ~~Depositor~~ Seller in, but none of the obligations of the ~~Depositor~~ Seller with respect to, the Mortgage Loan Purchase Agreement, including but not limited to ~~Depositor~~Seller's rights and obligations pursuant to each of the Servicing Agreements (noting that the Mortgage Loan Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) ~~its~~ the rights with respect to each of the Servicing ~~Agreements~~Agreements as assigned to the Master Servicer and the Trustee on behalf of the Trust and Certificateholders, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Mortgage Loan Seller, and the ~~Depositor~~Seller, and (viii~~) [Reserved] and (ix~~) any proceeds of the foregoing. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Mortgage Loan Seller or the ~~Depositor~~ Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Mortgage Loan Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the ~~Depositor~~ Seller shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. In addition to the foregoing, the ~~Depositor~~ Seller shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section ~~6.01(a~~6.01(a)(i)(A) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. ~~C. §~~ X.xx. 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the ~~Depositor;~~ Seller; (ii) none of the ~~Depositor~~Seller, its creditors or, in any insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the ~~Depositor~~ Seller any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the ~~Depositor~~Seller's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the ~~Depositor~~Seller's right, title and interest in and to the Mortgage Loans and other assets in the Trust 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~~ Seller shall be deemed to have granted to the Trustee a first priority perfected security interest in all of the ~~Depositor~~Seller's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Mortgage Loan Seller, on behalf of the ~~Depositor~~ Seller does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without ~~recourse~~recourse substantially in the form set forth on Exhibit C-4 hereto, or in blank ~~or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2004-4, without recourse~~ (in each case, with all necessary intervening endorsements as applicable); , or Lost Note Affidavit in lieu thereof; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Mortgage Loan Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Mortgage Loan Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the ~~Depositor~~ Seller that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, ~~each~~ the Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Mortgage Loan Seller (or the Mortgage Loan Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Mortgage Loan Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Mortgage Loan Seller or the ~~Depositor~~Seller, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Mortgage Loan Seller shall properly record (or the Mortgage Loan Seller will cause the applicable Servicer to properly record), at the expense of the Mortgage Loan Seller (with the cooperation of the ~~Depositor~~Seller, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The ~~Depositor~~ Seller concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account and the Yield Maintenance Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the ~~Depositor~~ Seller in, but none of the obligations of the ~~Depositor~~ Seller with respect to, the Mortgage Loan Purchase Agreement, including but not limited to ~~Depositor~~Seller's rights and obligations pursuant to each of the Servicing Agreements (noting that the Mortgage Loan Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Mortgage Loan Seller, and the ~~Depositor~~Seller, (viii) ~~[Reserved]~~ its rights under the MLCC Limited Purpose Insurance Policy, and (ix) any proceeds of the foregoing. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Mortgage Loan Seller or the ~~Depositor~~ Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Mortgage Loan Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the ~~Depositor~~ Seller shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. In addition to the foregoing, the ~~Depositor~~ Seller shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section ~~6.01(a~~6.01(a)(i)(A) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § Section 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the ~~Depositor;~~ Seller; (ii) none of the ~~Depositor~~Seller, its creditors or, in any insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the ~~Depositor~~ Seller any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the ~~Depositor~~Seller's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the ~~Depositor~~Seller's right, title and interest in and to the Mortgage Loans and other assets in the Trust 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~~ Seller shall be deemed to have granted to the Trustee a first priority perfected security interest in all of the ~~Depositor~~Seller's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Mortgage Loan Seller, on behalf of the ~~Depositor~~ Seller does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan except, in the case of the 1998-1 Mortgage Loans, those documents and instruments listed on Exhibit K hereto (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, (a) the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust ~~2004~~2003-42, without ~~recourse~~ recourse" (in each case, with all necessary intervening endorsements as applicable); , or (b) with respect to 38 Mortgage Loans, Lost Note Affidavits in lieu thereof; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Mortgage Loan Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Mortgage Loan Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the ~~Depositor~~ Seller that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. ~~(c)~~ (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Mortgage Loan Seller (or the Mortgage Loan Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Mortgage Loan Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Mortgage Loan Seller or the ~~Depositor~~Seller, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Mortgage Loan Seller shall properly record (or the Mortgage Loan Seller will cause the applicable Servicer to properly record), at the expense of the Mortgage Loan Seller (with the cooperation of the ~~Depositor~~Seller, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan. (ii) With respect to each Cooperative Loan, the Mortgage Loan Seller will take (or shall cause the applicable Servicer to take), at the expense of the Mortgage Loan Seller (with the cooperation of the Seller, the Trustee and the Master Servicer), such actions as are necessary under applicable law in order to perfect the interest of the Trust in the related Mortgaged Property. (iii) With respect to each MERS Mortgage Loan, the Mortgage Loan Seller will take (or shall cause the applicable Servicer to take), at the expense of the Mortgage Loan Seller (with the cooperation of the Seller, the Trustee and the Master Servicer), such actions as are necessary to cause the Trust to be clearly identified as the owner of each such Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. (d) In addition, in instances where a title insurance policy is required to be delivered to the Trustee, or to the Custodian on behalf of the Trustee, under clause (b)(viii) above or, with respect to the 1998-1 Mortgage Loans, pursuant to Exhibit K, and is not so delivered, the Mortgage Loan Seller will provide a copy of such title insurance policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date. (e) For Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Mortgage Loan Seller, in lieu of delivering the above documents, herewith delivers to the Trustee, or to the Custodian on behalf of the Trustee, an Officer's Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account are to be remitted by the related Servicers in accordance with their respective Servicing Agreements. All original documents that are not delivered to the Trustee or the Custodian on behalf of the Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. (f) With respect to each Mortgage Loan as to which a Lost Note Affidavit has been delivered in lieu of an original Mortgage Note, the Mortgage Loan Seller indemnifies the Trustee and the Trust and holds them harmless against any losses resulting from an inability to enforce the Mortgagor's obligations under such Mortgage Loan or to foreclose on the related Mortgaged Property, or any reduction in Liquidation Proceeds on foreclosure, or any other loss, in each case resulting from lack of possession of the original Mortgage Note.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Inc)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the Depositor in, but none of the obligations of the Depositor with respect to, the Mortgage Loan Purchase Agreement, including but not limited to Depositor's rights and obligations pursuant to each of the Servicing Agreements (noting that the Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Seller, and the Depositor, (viii) ~~[Reserved]~~ if any of the Mortgage Loans identified on the Mortgage Loan Schedule are MLCC Mortgage Loans, its related rights under the MLCC Limited Purpose Surety Bond and (ix) any proceeds of the foregoing. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Seller or the Depositor or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the Depositor shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. In addition to the foregoing, the Depositor shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section 6.01(a) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § ss. 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor; ; (ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to the Depositor or the Depositor's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the Depositor or the Depositor's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the Depositor's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. 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 Mortgage Loans and other assets in the Trust 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 Trustee a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Seller, on behalf of the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for ~~Xxxxxxxxx~~ Thornburg Mortgage Securities Trust 2004-41, without ~~recourse~~ recxxxxx (in xx each case, with all necessary intervening endorsements as applicable); ; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the Depositor that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. ~~(c)~~ (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; ~~provided~~PROVIDED, ~~however~~HOWEVER, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan. (ii) With respect to each Cooperative Loan, the Seller will take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law in order to perfect the interest of the Trust in the related Mortgaged Property. (iii) With respect to each MERS Mortgage Loan, the Seller will take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary to cause the Trust to be clearly identified as the owner of each such Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. (d) In addition, in instances where a title insurance policy is required to be delivered to the Trustee, or to the Custodian on behalf of the Trustee, under clause (b)(viii) above and is not so delivered, the Seller will provide a copy of such title insurance policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date. (e) For Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, herewith delivers to the Trustee, or to the Custodian on behalf of the Trustee, an Officer's Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account are to be remitted by the related Servicers in accordance with their respective Servicing Agreements. All original documents that are not delivered to the Trustee or the Custodian on behalf of the Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. (f) Notwithstanding the foregoing, with respect to up to 1% of the Scheduled Principal Balance of the Mortgage Loans as of the Cut-Off Date, in lieu of a Mortgage File containing an original, endorsed Mortgage Note, the Seller may deliver a Lost Note Affidavit with respect thereto.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Ii Inc)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The ~~Depositor~~ Seller concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the ~~Depositor~~ Seller in, but none of the obligations of the ~~Depositor~~ Seller with respect to, the Mortgage Loan Purchase Agreement, including but not limited to ~~Depositor~~Seller's rights and obligations pursuant to each of the Servicing Agreements (noting that the Mortgage Loan Seller has ~~also~~ retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) ~~its~~ the rights with respect to each of the Servicing ~~Agreements~~Agreements as assigned to the Master Servicer and the Trustee on behalf of the Trust and Certificateholders, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, ~~and~~ (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, and (d) its rights as beneficiary under the Surety Bond in respect of any Additional Collateral Mortgage Loans, in each case, as previously conveyed to the Mortgage Loan Seller, and the ~~Depositor~~Seller, and (viii~~) [Reserved] and (ix~~) any proceeds of the foregoing. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Mortgage Loan Seller or the ~~Depositor~~ Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Mortgage Loan Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the ~~Depositor~~ Seller shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. In addition to the foregoing, the ~~Depositor~~ Seller shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section ~~6.01(a~~6.01(a)(i)(A) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. ~~C. §~~ X.xx. 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the ~~Depositor;~~ Seller; (ii) none of the ~~Depositor~~Seller, its creditors or, in any insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the ~~Depositor~~ Seller any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the ~~Depositor~~Seller's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the ~~Depositor~~Seller's right, title and interest in and to the Mortgage Loans and other assets in the Trust 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~~ Seller shall be deemed to have granted to the Trustee a first priority perfected security interest in all of the ~~Depositor~~Seller's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Mortgage Loan Seller, on behalf of the ~~Depositor~~ Seller does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without ~~recourse~~recourse substantially in the form set forth on Exhibit C-4 hereto, or in blank ~~or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2004-4, without recourse~~ (in each case, with all necessary intervening endorsements as applicable), or Lost Note Affidavit in lieu thereof; provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to those Mortgage Loans with respect to which the aggregate Outstanding Principal Balance thereof as the Cut-Off Date is less than or equal to 2.0% of the Cut-Off Date Balance. (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Mortgage Loan Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Mortgage Loan Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the ~~Depositor~~ Seller that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, ~~each~~ the Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Mortgage Loan Seller (or the Mortgage Loan Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Mortgage Loan Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Mortgage Loan Seller or the ~~Depositor~~Seller, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Mortgage Loan Seller shall properly record (or the Mortgage Loan Seller will cause the applicable Servicer to properly record), at the expense of the Mortgage Loan Seller (with the cooperation of the ~~Depositor~~Seller, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The ~~Depositor~~ Seller concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account and the Yield Maintenance Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the ~~Depositor~~ Seller in, but none of the obligations of the ~~Depositor~~ Seller with respect to, the Mortgage Loan Purchase Agreement, including but not limited to ~~Depositor~~Seller's rights and obligations pursuant to each of the Servicing Agreements (noting that the Mortgage Loan Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Mortgage Loan Seller, and the ~~Depositor~~Seller, (viii) ~~[Reserved]~~ its rights under the MLCC Limited Purpose Insurance Policy, and (ix) any proceeds of the foregoing. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Mortgage Loan Seller or the ~~Depositor~~ Seller or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Mortgage Loan Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the ~~Depositor~~ Seller shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Mortgage Loan Seller hereby consents to such transfer of the ~~Depositor~~Seller's right, title and interest as set forth above. In addition to the foregoing, the ~~Depositor~~ Seller shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section ~~6.01(a~~6.01(a)(i)(A) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the ~~Depositor;~~ Seller; (ii) none of the ~~Depositor~~Seller, its creditors or, in any insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the ~~Depositor~~ Seller any property, assets or rights purported to be transferred, in whole or in part, by the ~~Depositor~~ Seller pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the ~~Depositor~~ Seller or the ~~Depositor~~Seller's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the ~~Depositor~~Seller's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. Although it is the intent of the parties to this Agreement that the conveyance of the ~~Depositor~~Seller's right, title and interest in and to the Mortgage Loans and other assets in the Trust 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~~ Seller shall be deemed to have granted to the Trustee a first priority perfected security interest in all of the ~~Depositor~~Seller's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Mortgage Loan Seller, on behalf of the ~~Depositor~~ Seller does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan except, in the case of the 1998-1 Mortgage Loans, those documents and instruments listed on Exhibit K hereto (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, (a) the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust ~~2004~~2003-42, without ~~recourse~~ recourse" (in each case, with all necessary intervening endorsements as applicable); , or (b) with respect to 38 Mortgage Loans, Lost Note Affidavits in lieu thereof; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Mortgage Loan Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Mortgage Loan Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the ~~Depositor~~ Seller that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Mortgage Loan Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. (c) (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Mortgage Loan Seller (or the Mortgage Loan Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Mortgage Loan Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Mortgage Loan Seller or the ~~Depositor~~Seller, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Mortgage Loan Seller shall properly record (or the Mortgage Loan Seller will cause the applicable Servicer to properly record), at the expense of the Mortgage Loan Seller (with the cooperation of the ~~Depositor~~Seller, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Structured Asset Mortgage Investments Inc)

Conveyance of Mortgage Loans and Other Assets to the Trust. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Trust without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date (and excluding any Retained Interest ~~on, and Prepayment Penalty Amounts paid with respect to,~~ on a Mortgage Loan); (ii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicers in each Servicer Account, the Master Servicer in the Master Servicer Collection Account and the Trustee in the Distribution Account (but, in each case, excluding all investment earnings thereon) ), for the benefit of the Trust, (iii) any REO Property, (iv) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (v) the rights of the Depositor in, but none of the obligations of the Depositor with respect to, the Mortgage Loan Purchase Agreement, including but not limited to Depositor's rights and obligations pursuant to each of the Servicing Agreements (noting that the Seller has also retained the right in the event of breach of the representations, warranties and covenants, if any, with respect to the related Mortgage Loans of the related Servicer under the related Servicing Agreement to enforce the provisions thereof and to seek all or any available remedies), (vi) its rights with respect to each of the Servicing Agreements, (vii) with respect to Additional Collateral Mortgage Loans (a) its rights as assignee under any security agreements, pledge agreements or guarantees relating to the Additional Collateral supporting any Additional Collateral Mortgage Loan, (b) its security interest in and to any Additional Collateral, and (c) its right to receive payments in respect of any Additional Collateral Mortgage Loan pursuant to the related Servicing Agreement, in each case, as previously conveyed to the Seller, and the Depositor, (viii) ~~[Reserved]~~ if any of the Mortgage Loans identified on the Mortgage Loan Schedule are MLCC Mortgage Loans, its related rights under the MLCC Limited Purpose Surety Bond and (ix) any proceeds of the foregoing. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Seller or the Depositor or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. The obligations of the Seller to substitute or repurchase, as applicable, a Mortgage Loan shall be the Trustee's, the Trust's and the Certificateholders' sole remedy for any breach thereof. At the request of the Trustee, the Depositor shall take such actions as may be necessary to enforce the above right, title and interest on behalf of the Trustee and the Trust or shall execute such further documents as the Trustee may reasonably require in order to enable the Trustee to carry out such enforcement. The Seller hereby consents to such transfer of the Depositor's right, title and interest as set forth above. In addition to the foregoing, the Depositor shall deliver to the Trustee on the Closing Date, for deposit into the Distribution Account, the sum of $100.00, to be distributed in accordance with Section 6.01(a) hereof. For purposes of complying with the requirements of the Asset-Backed Securities Facilitation Act of the State of Delaware, 6 Del. C. § Section 2701A, et seq. (the "Securitization Act"), each of the parties hereto hereby agrees that: (i) any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement shall be deemed to no longer be the property, assets or rights of the Depositor; ; (ii) none of the Depositor, its creditors or, in any insolvency proceeding with respect to the Depositor or the Depositor's property, a bankruptcy trustee, receiver, debtor, debtor in possession or similar person, to the extent the issue is governed by Delaware law, shall have any rights, legal or equitable, whatsoever to reacquire (except pursuant to a provision of this Agreement), reclaim, recover, repudiate, disaffirm, redeem or recharacterize as property of the Depositor any property, assets or rights purported to be transferred, in whole or in part, by the Depositor pursuant to this Agreement (including the Assignment); ; (iii) in the event of a bankruptcy, receivership or other insolvency proceeding with respect to the Depositor or the Depositor's property, to the extent the issue is governed by Delaware law, such property, assets and rights shall not be deemed to be part of the Depositor's property, assets, rights or estate; ~~and~~ and (iv) the transaction contemplated by this Agreement shall constitute a "securitization transaction" as such term is used in the Securitization Act. 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 Mortgage Loans and other assets in the Trust 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 Trustee a first priority perfected security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with such transfer and assignment, the Seller, on behalf of the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Trustee, and/or any Custodian acting on the Trustee's behalf, if applicable, the following documents or instruments with respect to each Mortgage Loan (each a "Mortgage File") so transferred and assigned: (i) with respect to each Mortgage Loan, the original Mortgage Note endorsed without recourse, in blank or in substantially the following form: pay to the order of Deutsche Bank National Trust Company, as Trustee for Xxxxxxxxx Mortgage Securities Trust 2004-41, without recourse (in each case, with all necessary intervening endorsements as applicable); ; (ii) the original of any guarantee, security agreement or pledge agreement relating to any Additional Collateral, if applicable, and executed in connection with the Mortgage Note, assigned to the Trustee on behalf of the Trust; ; (iii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original recorded Security Instrument with evidence of recording indicated thereon and the original recorded power of attorney, if the Security Instrument was executed pursuant to a power of attorney, with evidence of recording thereon or, if such Security Instrument or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Security Instrument or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording. If, in connection with any Mortgage Loan, the Seller cannot deliver the Security Instrument with evidence of recording thereon on or prior to the Closing Date because of a delay caused by the public recording office where such Security Instrument has been delivered for recordation or because such Security Instrument has been lost, the Seller shall deliver or cause to be delivered to the Trustee (or its Custodian) on behalf of the Trust, in the case of a delay due to recording, a true copy of such Security Instrument, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such Security Instrument delivered to the Trustee (or its Custodian) is a true copy and that the original of such Security Instrument has been forwarded to the public recording office, or, in the case of a Security Instrument that has been lost, a copy thereof (certified as provided for under the laws of the appropriate jurisdiction) and a written Opinion of Counsel acceptable to the Trustee and the Depositor that an original recorded Security Instrument is not required to enforce the Trustee's interest in the Mortgage Loan; ; (iv) the original of each assumption, modification or substitution agreement, if any, relating to the Mortgage Loans, or, as to any assumption, modification or substitution agreement which cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such assumption, modification or substitution agreement has been delivered for recordation, a photocopy of such assumption, modification or substitution agreement, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such assumption, modification or substitution agreement delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such agreement has been forwarded to the public recording office; ; (v) with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan), the original assignment of mortgage for each Mortgage Loan; ; (vi) if applicable, such original intervening assignments of the Security Instrument, notice of transfer or equivalent instrument (each, an "Intervening Assignment"), as may be necessary to show a complete chain of assignment from the originator, or, in the case of an Intervening Assignment that has been lost, a written Opinion of Counsel acceptable to the Trustee that such original Intervening Assignment is not required to enforce the Trustee's interest in the Mortgage Loans; ; (vii) the original Primary Mortgage Insurance Policy, if any, or certificate, if private mortgage guaranty insurance is required; ; (viii) with respect to each Mortgage Loan (other than a Cooperative Loan), the original mortgagee title insurance policy or attorney's opinion of title and abstract of title; ; (ix) the original of any security agreement, chattel mortgage or equivalent executed in connection with the Security Instrument or as to any security agreement, chattel mortgage or their equivalent that cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such document has been delivered for recordation, a photocopy of such document, pending delivery of the original thereof, together with an Officer's Certificate of the Seller certifying that the copy of such security agreement, chattel mortgage or their equivalent delivered to the Trustee (or its custodian) on behalf of the Trust is a true copy and that the original of such document has been forwarded to the public recording office; ~~and~~ and (x) with respect to any Cooperative Loan, the Cooperative Loan Documents. ~~(c)~~ (i) Assignments of each Security Instrument with respect to each Non-MERS Mortgage Loan (other than a Cooperative Loan) shall be recorded; provided, however, that such assignments need not be recorded if, in the Opinion of Counsel (which must be from Independent counsel and not at the expense of the Trust or the Trustee) acceptable to the Trustee, each Rating Agency and the Master Servicer, recording in such states is not required to protect the Trust's interest in the related Non-MERS Mortgage Loans; provided, however, notwithstanding the delivery of any Opinion of Counsel, each assignment of Security Instrument shall be submitted for recording by the Seller (or the Seller will cause the applicable Servicer to submit each such assignment for recording), at the cost and expense of the Seller, in the manner described above, at no expense to the Trust or Trustee, upon the earliest to occur of (1) reasonable direction by the Holders of Certificates evidencing Fractional Undivided Interests aggregating not less than 51% of the Trust, (2) the occurrence of a bankruptcy or insolvency relating to the Seller or the Depositor, or (3) with respect to any one assignment of Security Instrument, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Subject to the preceding sentence, as soon as practicable after the Closing Date (but in no event more than 3 months thereafter except to the extent delays are caused by the applicable recording office), the Seller shall properly record (or the Seller will cause the applicable Servicer to properly record), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), in each public recording office where the related Mortgages are recorded, each assignment referred to in subsection (b)(v) above with respect to a Non-MERS Mortgage Loan. (ii) With respect to each Cooperative Loan, the Seller will take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary under applicable law in order to perfect the interest of the Trust in the related Mortgaged Property. (iii) With respect to each MERS Mortgage Loan, the Seller will take (or shall cause the applicable Servicer to take), at the expense of the Seller (with the cooperation of the Depositor, the Trustee and the Master Servicer), such actions as are necessary to cause the Trust to be clearly identified as the owner of each such Mortgage Loan on the records of MERS for purposes of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. (d) In addition, in instances where a title insurance policy is required to be delivered to the Trustee, or to the Custodian on behalf of the Trustee, under clause (b)(viii) above and is not so delivered, the Seller will provide a copy of such title insurance policy to the Trustee, or to the Custodian on behalf of the Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date. (e) For Mortgage Loans (if any) that have been prepaid in full after the Cut-off Date and prior to the Closing Date, the Seller, in lieu of delivering the above documents, herewith delivers to the Trustee, or to the Custodian on behalf of the Trustee, an Officer's Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are required to be deposited in the Distribution Account are to be remitted by the related Servicers in accordance with their respective Servicing Agreements. All original documents that are not delivered to the Trustee or the Custodian on behalf of the Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the Trustee, for the benefit of the Trust and the Certificateholders. (f) Notwithstanding the foregoing, with respect to up to 1% of the Scheduled Principal Balance of the Mortgage Loans as of the Cut-Off Date, in lieu of a Mortgage File containing an original, endorsed Mortgage Note, the Seller may deliver a Lost Note Affidavit with respect thereto.

Appears in 1 contract

Samples: Trust, Pooling and Servicing Agreement (Thornburg Mortgage Inc)

Common use of Conveyance of Mortgage Loans and Other Assets to the Trust Clause in Contracts