Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Issuer, without recourse, subject to Sections 2.02, 2.03, 3.03 and 3.04, in trust, all the right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s rights under the hazard insurance policies; (iv) the Policy; (v) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer on the Closing Date pursuant to this Section 2.01(a), and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate. (b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein. (c) [Reserved.] (d) In connection with such transfer and assignment of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, 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 Credit Line Agreement; (ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank; (A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan; (iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded; (v) either a title policy or guaranty title with respect to the related Mortgaged Property; (vi) the original of any guaranty executed in connection with the Mortgage Loan; (vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and (viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages. (e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording. (f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date. (g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 2 contracts
Samples: Transfer and Servicing Agreement (Structured Asset Securities Corp), Transfer and Servicing Agreement (Lehman Abs Corp)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Depositor, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with over and otherwise convey to the Issuer, Trust without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.02 and 3.04, in trust, 2.04) all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Asset Balance (including any all Additional Balances related theretoBalances) and all collections in respect thereof received on or after the Cut-Off off Date (excluding Interest Collections payments in respect of accrued interest due on or prior to the Cut-Off Dateoff Date or due in the month of ____________); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Depositor's rights under the Purchase Agreement; (iv) [the Depositor's rights under the hazard insurance policies; (iv) the Policy; ,] (v) the Collection Account and the Distribution Account[Security Account for the Certificates] (excluding net earnings thereon); (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale AgreementPolicy, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing Spread Account and any other Trust Property and (viii) all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the InsurerCertificateholders; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Asset Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the DepositorInvestor Certificateholders. The foregoing sale, transfer, assignment, set-over, deposit over and conveyance does not to the Trust shall be made to the Trustee, on behalf of the Trust, and is not intended each reference in this Agreement to result such transfer, assignment, set-over and conveyance shall be construed accordingly. The Depositor agrees to take or cause to be taken such actions and execute such documents (including without limitation the filing of all necessary continuation statements for the UCC-1 financing statements filed in creation the State of __________ (which shall have been filed within 90 days of the Closing Date) describing the Cut-off Date Asset Balances and Additional Balances and naming the Depositor as debtor and the Trustee as secured party and any amendments to UCC-1 financing statements required to reflect a change in the name or assumption corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 90 days of any event necessitating such filing) as are necessary to perfect and protect the Certificateholders' and Credit Enhancer's interests in each Cut-off Date Asset Balance and Additional Balances and the proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except and the Mortgage Files, which possession will, subject to the terms hereof, be maintained by the Master Servicer as specifically set forth herein.
(c) [Reserved.]
(d) custodian and bailee of the Trustee). In connection with such transfer and assignment of by the Mortgage LoansDepositor, the Depositor does hereby deliver to, Master Servicer acknowledges that it is holding as custodian and deposit with, or cause to be delivered to and deposited with, bailee for the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
(ithe "Related Documents") with respect to each Mortgage Loan, :
(i) the original Credit Line AgreementMortgage Note endorsed in blank;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blankblank in recordable form;
(Aiii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Seller, at the direction of the Depositor, shall deliver or cause to be delivered to the Custodian, as agent for the Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Depositor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Depositor or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Seller stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either (1) for each Mortgage Loan with a Credit Limit in excess of $_________, a title policy or (2) for all other Mortgage Loans, either a title policy, a title search or guaranty of title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage LoansLoan; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge ; provided, however, that as to any Mortgage Loan, if (a) as evidenced by an Opinion of Counsel delivered to and agree that the in form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer and substance satisfactory to the Indenture Trustee as pledgee and the Credit Enhancer, (x) an optical image or other representation of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to related documents specified in clauses (i) segregate through (aviii) above are enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Files from documents and instruments relating Loan to mortgage loans that are not transfer its interest in such Mortgage Loans Loan, and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days retention of such Recordation Event to submit documents in such format will not result in a reduction in the then current rating of the Investor Certificates, without regard to the appropriate recording offices Assignments Policy, such optical image or other representation may be held by the Master Servicer, as custodian for the Trustee or assignee in lieu of Mortgage the physical documents specified above. The Seller hereby confirms to the Indenture Trustee that it has caused the portions of the Electronic Ledgers relating to the Mortgage Loans to be clearly and unambiguously marked, and has made the appropriate entries in its general accounting records, to indicate that such Mortgage Loans have been transferred to the Trust at the direction of the Depositor. The Master Servicer hereby confirms to the Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the TrustTrust in accordance with the terms hereof. The parties hereto intend that the transaction set forth herein be a sale by the Depositor to the Trust of all the Depositor's right, title and interest in and to the Mortgage Loans and other property described above. In the event the transaction set forth herein is deemed not to be a sale, the Depositor hereby grants to the Trust a security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans whether now existing or hereafter created, all monies due or to become due on the Mortgage Loans and all proceeds of any thereof; and this Agreement shall constitute a security agreement under applicable law. Except as hereinafter provided, the Master Servicer shall be entitled to maintain possession of all of the foregoing documents and instruments and shall not be required to deliver any of them to the Trustee. In the event, however, that possession of any of such documents or instruments is required by any Person (including the Trustee) acting as successor servicer pursuant to Section 7.04 or 8.02 in order to carry out the duties of Master Servicer hereunder, then such successor shall be entitled to request delivery, at the expense of the Master Servicer, of such documents or instruments by the Master Servicer and to retain such documents or instruments for servicing purposes; provided that the Trustee or such servicers shall maintain such documents at such offices as may be required by any regulatory body having jurisdiction over such Mortgage Loans. The Master Servicer's right to maintain possession of the documents enumerated above shall continue so long as the long term unsecured debt of [Countrywide Home Loans, Inc.] is assigned ratings of at least "BBB-" by __________________ and "Baa2" by _______________. At such time as the condition specified in the preceding sentence is not satisfied, as promptly as practicable but in no event more than 90 days in the case of clause (i) below and 60 days in the case of clause (ii) below following the occurrence of such event (a "Delivery Event"), the Master Servicer shall, at its expense, (i) either (x) record an assignment of Mortgage in favor of the Trustee (which may be a blanket assignments assignment if permitted by applicable law, for ) in the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide appropriate real property or other records or (y) deliver to the Indenture Trustee and the Insurerassignment of such Mortgage in favor of the Trustee in form for recordation, together with an Opinion of Counsel addressed to the Trustee and the Credit Enhancer to the effect that recording is not required to protect the Trustee's right, title and interest in and to the related Mortgage Loan or, in case a form court should recharacterize the sale of the Mortgage Loans as a financing, to perfect a first priority security interest in favor of the Trustee in the related Mortgage Loan, which Opinion of Counsel also shall be reasonably acceptable to each of the Rating Agencies (as evidenced in writing) and the Credit Enhancer, and (ii) unless an Opinion of Counsel, reasonably acceptable to the Indenture Trustee, the Rating Agencies (as evidenced in writing) and the Credit Enhancer, is delivered to the Trustee and the Insurer, Credit Enhancer to the effect that recordation delivery of an Assignment of the Mortgage in the state where the related Mortgaged Property is located Files is not necessary to protect the interests of the Owner Trustee's right, the Indenture Trustee or the Noteholders title and interest in the related Mortgage. In Mortgage Loans; provided that the event that any such Assignment lack of delivery will not result in a reduction in the then current rating of the Investor Certificates, without regard to the Policy, deliver the related Mortgage is lost Files to the Trustee or returned unrecorded because to a custodian located in the State of a defect therein, California appointed by the Indenture Trustee shall cause and acceptable to the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as Rating Agencies and the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required Credit Enhancer to be delivered to held by the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above in trust, upon the terms herein set forth, for the use and is not so delivered, benefit of all present and future Certificateholders and the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior Trustee shall retain possession thereof except to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by extent the Master Servicer or requires any Mortgage Files for normal servicing as contemplated by Section 3.07. The Trustee is hereby appointed as the applicable Servicer in trust for the benefit attorney-in-fact of the Indenture Master Servicer with the power to prepare, execute and record Assignments of Mortgages in the event that the Master Servicer fails to do so on a timely basis as provided in this paragraph. Within 90 days following delivery, if any, of the Mortgage Files to the Trustee pursuant to the preceding paragraph, the Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Trustee finds any document constituting a part of a Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Trustee determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall promptly upon the conclusion of its review notify the Seller and the SecurityholdersCredit Enhancer, and the Seller shall have a period of 90 days after such notice within which to correct or cure any such defect. The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Cwabs Inc), Pooling and Servicing Agreement (Cwabs Inc)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's delivery to or upon the order of the Notes Sponsor on the Closing Date of the net proceeds from the sale of the Notes, the Class S Certificates and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.05 and 3.04, in trust2.07), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Initial Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Initial Cut-Off Date (excluding Interest Collection due on or prior to the Initial Cut-Off Date); (ii) each Subsequent Mortgage Loan (including any Additional Balances related thereto) and all collections in respect thereof received after the related Subsequent Cut-Off Date (excluding Interest Collections due on or prior to the such related Subsequent Cut-Off Date); (iiiii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iiiiv) all of the Sponsor's rights under the Purchase Agreement (including all representations and warranties of the Seller contained therein); (v) the Seller’s Sponsor's rights under the hazard insurance policies; (ivvi) the Reserve Fund; (vii) the Policy; (vvii) the Collection Pre-Funding Account and the Distribution Collection Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (viiviii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Class S Certificateholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the HELOC Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersNoteholders and the Class S Certificateholders. The Indenture Trustee declares that, subject It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the review provided for in Section 2.02, it has received Issuer and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit that such sale should constitute a valid transfer and use assignment of the Securityholders Mortgage Loans and for the purposes and subject other Trust Property to the terms Issuer and conditions set forth the beneficial interest in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect title to the Mortgage Loans serviced and the other Trust Property shall not be part of the Sponsor's estate in the event of the filing of a bankruptcy petition by each Serviceror against the Sponsor under any bankruptcy law. In the event that, notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the property referred to in this Section 2.01 for the benefit of the Noteholders, the Residual Certificateholders and the Insurer. To the extent that the related [aggregate] Purchase Price fair market value of any [all] Additional Balance[s] Balance or Subsequent Mortgage Loan sold by the Sponsor to the Issuer is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance or Subsequent Mortgage Loan, the difference between such Purchase Price fair market value and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price fair market value of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign to filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California, Delaware and New York, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) the Servicer as debtor and the Sponsor as secured party, and (ii) the Sponsor as debtor and the Issuer all of its rights, title as secured party and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled any amendments to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership UCC-1 financing statements required to reflect a change in the Trust Estate shall be vested in name or corporate structure of the Issuer, subject the Servicer or the Sponsor or the filing of any additional UCC-1 financing statements due to the lien created by change in the Indenture in favor principal office of the Indenture TrusteeServicer or the Sponsor (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Noteholders', for the benefit of the Securityholders Class S Certificateholders' and the Insurer. The Issuer hereby accepts such assignment 's interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment assignment, the Servicer shall deliver to the Custodian on behalf of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (each a "Related Document" and together for each Mortgage Loan, the "Mortgage File") with respect to each Initial Mortgage Loan (on the Closing Date and will deliver with respect to each a “Subsequent Mortgage File”) so transferred and assignedLoan, on the related Subsequent Transfer Date:
(i) the original Mortgage Note endorsed in blank or endorsed with the following: "GreenPoint Mortgage Funding, Inc. to the GreenPoint Home Equity Loan Trust 2001-2, by The Bank of New York, as trustee, for the Home Equity Loan-Backed Notes, Series 2001-2 without recourse", and with respect to each any HELOC Mortgage Loan, the original Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor shall deliver or cause to be delivered to the CustodianIndenture Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Sponsor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “"Mortgage Identification Number” " of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Indenture Trustee or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer Sponsor hereby confirms to the Indenture Trustee as pledgee that it has caused the portions of the IssuerElectronic Ledgers relating to the Initial Mortgage Loans as of the Closing Date, and that it will cause such Electronic Ledgers with respect to each Subsequent Mortgage Loans as of the related Subsequent Transfer Date, to be clearly and unambiguously marked, and has made, or will make, the appropriate entries in its general accounting records to indicate that such Mortgage Loans have been transferred to the Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust in accordance with the terms hereof. The Servicer hereby confirms to the Indenture Trustee that it will clearly and unambiguously make appropriate entries in its general accounting records indicating that each Subsequent Mortgage Loan constitutes part of the Trust and is serviced by it on behalf of the Trust in accordance with the terms hereof as of the related Subsequent Transfer Date.
(d) Notwithstanding the characterization of the Notes as debt for Federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans to the Trust as provided herein as a sale, for the benefit of the Securityholderscertain non-tax purposes, of all the Credit Line Agreements Sponsor's right, title and interest in and to the Mortgage Loans, whether now existing or hereafter created, and the Mortgagesother property described above and all proceeds thereof. In the event such transfer is deemed not to be a sale for such purposes, the Sponsor grants to the Trust, a security interest in all of such party's right, title and interest in, to and under the Mortgage Loans, whether now existing or hereafter created, and the other property described above and all proceeds thereof; and this Agreement shall constitute a security agreement under applicable law.
(e) Upon Within 90 days following delivery of the occurrence Mortgage Files to the Custodian on behalf of a Recordation Eventthe Indenture Trustee pursuant to this Section, the Indenture Trustee shall cause the Custodian to (i) segregate (a) review on its behalf or the Indenture Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Files from documents Loans identified on the Mortgage Loan Schedule and instruments relating in so doing the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee finds any document constituting a part of a Mortgage File not to mortgage loans that are not have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee determines that such Mortgage File is otherwise defective in any material respect, the Indenture Trustee shall promptly upon the conclusion of its review or the Custodian's review on its behalf notify the Sponsor and the Insurer, and the Sponsor shall have a period of 90 days after such notice within which to correct or cure any such defect. Upon the completion of its 90-day review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee shall also notify the Insurer of any Mortgage File with respect to which it has been delivered any items other than the original recorded Mortgage with respect to Section 2.01(c)(iii). Neither the Custodian on behalf of the Indenture Trustee nor the Indenture Trustee shall have any responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Indenture Trustee and the Custodian on behalf of the Indenture Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (b) except, if applicable, to determine if the Credit Line Agreement Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded. Upon its receipt of written notice from the Related Documents Servicer or the Insurer that a Recordation Event has occurred the Indenture Trustee shall take all necessary steps to prepare and submit for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare recordation an Assignment of Mortgage for each (or a blanket Assignment of Mortgage covering multiple Mortgage Loans if the same is permitted in any applicable jurisdiction) at the expense of the Servicer or, if the Servicer fails to pay such amounts or is no longer a party hereto, pursuant to Section 8.7(d)(xii) of the Indenture.
(f) The Sponsor shall sell, assign, transfer, set over and otherwise convey without recourse to the Indenture Trustee all right, title and interest of the Sponsor in and to any Eligible Substitute Mortgage Loan delivered to the Indenture Trustee on behalf of the Trust by the Sponsor pursuant to Section 2.03 or Section 2.05 hereof and all its right, title and interest to principal collected and interest accruing on such Eligible Substitute Mortgage Loan on and after the applicable Substitute Cut-Off Date; provided, however, that the Sponsor shall reserve and retain all right, title and interest in and to payments of interest due on such Eligible Substitute Mortgage Loan prior to the applicable Substitute Cut-Off Date; provided, further, that neither the Trust nor the Indenture Trustee shall be obligated to fund any future advances to the related Mortgagor under such Eligible Substitute Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days In connection with any transfer and assignment of such Recordation Event to submit to the appropriate recording offices Assignments of an Eligible Substitute Mortgage Loan to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may Sponsor agrees to cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(viithe items described in Section 2.01(c) above and is not so delivered, on the Depositor will provide a copy date of such Title Insurance Policy to the Indenture Trusteetransfer and assignment or, or to the applicable Custodian on behalf of the Indenture Trusteeif a later delivery time is permitted by Section 2.01(c), as promptly as practicable after the execution and then no later than such later delivery hereof, but in any case within 180 days of the Closing Datetime.
(g) For Each Defective Mortgage Loans (if any) Loan that have been prepaid in full after the Cut off Date and prior is required to be repurchased or substituted pursuant to the Closing Dateprovisions this Agreement or the Purchase Agreement shall, upon such repurchase or substitution in accordance with the Depositorprovisions hereof, in lieu of delivering be released from the above documents, herewith delivers Trust and from the lien created by the Indenture. As to each Mortgage Loan released from the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received Trust in connection with such prepayment that are required to be deposited in the Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to repurchase thereof or the conveyance of an Eligible Substitute Mortgage Loan therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse, to or upon the applicable Custodian on behalf order of the Indenture Trustee shall be held by Sponsor, all of its right, title and interest in and to such released Mortgage Loan and all the Master Servicer or Trust's right title and interest to principal collected and interest accruing on such released Mortgage Loan on and after the applicable Servicer in trust for the benefit first day of the Indenture Trustee calendar month in which such Mortgage Loan is released; provided, however, that the Trust shall reserve and the Securityholdersretain all right, title and interest in and to payments of principal and interest collected on such released Mortgage Loan prior to such date.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's delivery to or upon the order of the Sponsor on the Closing Date of the net proceeds from the sale of the Notes and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.05 and 3.04, in trust2.07), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections Collection due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) all of the Seller’s Sponsor's rights under the Purchase Agreement (including all representations and warranties of the Seller contained therein); (iv) the Sponsor's rights under the hazard insurance policies; (ivv) the Policy; (vvi) the Collection Account Demand Note and the Distribution Collection Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the Insurer; providedPROVIDED, howeverHOWEVER, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the HELOC Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the review provided for in Section 2.02, it has received Issuer and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit that such sale should constitute a valid transfer and use assignment of the Securityholders Mortgage Loans and for the purposes and subject other Trust Property to the terms Issuer and conditions set forth the beneficial interest in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect title to the Mortgage Loans serviced and the other Trust Property shall not be part of the Sponsor's estate in the event of the filing of a bankruptcy petition by each Serviceror against the Sponsor under any bankruptcy law. In the event that, notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the property referred to in this Section 2.01 for the benefit of the Noteholders, the Residual Certificateholders and the Insurer. To the extent that the related [aggregate] Purchase Price fair market value of any [all] Additional Balance[s] Balance is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance, the difference between such Purchase Price fair market value and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price fair market value of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign to filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California, Delaware and New York, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) the Servicer as debtor and the Sponsor as secured party, and (ii) the Sponsor as debtor and the Issuer all of its rights, title as secured party and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled any amendments to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership UCC-1 financing statements required to reflect a change in the Trust Estate shall be vested in name or corporate structure of the Issuer, subject the Servicer or the Sponsor or the filing of any additional UCC-1 financing statements due to the lien created by change in the Indenture in favor principal office of the Indenture Trustee, for Servicer or the benefit Sponsor (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Securityholders Noteholders' and the Insurer. The Issuer hereby accepts such assignment 's interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment assignment, the Servicer shall deliver to the Custodian on behalf of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (each a "RELATED DOCUMENT" and together for each Mortgage Loan, the "MORTGAGE FILE") with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assignedon the Closing Date:
(i) with respect to each any Closed End Mortgage Loan, the original Mortgage Note endorsed in blank or endorsed with the following: "GreenPoint Mortgage Funding, Inc. to the GreenPoint Home Equity Loan Trust 2003-1, by The Bank of New York, as trustee, for the Home Equity Loan-Backed Notes, Series 2003-1 without recourse", and with respect to any HELOC Mortgage Loan, the original Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor shall deliver or cause to be delivered to the CustodianIndenture Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Sponsor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “"Mortgage Identification Number” " of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignmentsintervening assignments, if anyany ("INTERVENING ASSIGNMENTS"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and GreenPoint Mortgage Funding, Inc.(and the endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer Sponsor hereby confirms to the Indenture Trustee as pledgee that it has caused the portions of the IssuerElectronic Ledgers relating to the Mortgage Loans as of the Closing Date to be clearly and unambiguously marked, and has made, or will make, the appropriate entries in its general accounting records to indicate that such Mortgage Loans have been transferred to the Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust in accordance with the terms hereof.
(d) Notwithstanding the characterization of the Notes as debt for federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans to the Trust as provided herein as a sale, for the benefit of the Securityholderscertain non-tax purposes, of all the Credit Line Agreements Sponsor's right, title and interest in and to the Mortgage Loans, whether now existing or hereafter created, and the Mortgagesother property described above and all proceeds thereof. In the event such transfer is deemed not to be a sale for such purposes, the Sponsor grants to the Trust, a security interest in all of such party's right, title and interest in, to and under the Mortgage Loans, whether now existing or hereafter created, and the other property described above and all proceeds thereof; and this Agreement shall constitute a security agreement under applicable law.
(e) Upon Within 90 days following delivery of the occurrence Mortgage Files to the Custodian on behalf of a Recordation Eventthe Indenture Trustee pursuant to this Section, the Indenture Trustee shall cause the Custodian to (i) segregate (a) review on its behalf or the Indenture Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Files from documents Loans identified on the Mortgage Loan Schedule and instruments relating in so doing the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee finds any document constituting a part of a Mortgage File not to mortgage loans that are not have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee determines that such Mortgage File is otherwise defective in any material respect, the Indenture Trustee shall promptly upon the conclusion of its review or the Custodian's review on its behalf notify the Sponsor and the Insurer, and the Sponsor shall have a period of 90 days after such notice within which to correct or cure any such defect. Upon the completion of its 90-day review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee shall also notify the Insurer of any Mortgage File with respect to which it has been delivered any items other than the original recorded Mortgage with respect to Section 2.01(c)(iii). Neither the Custodian on behalf of the Indenture Trustee nor the Indenture Trustee shall have any responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Indenture Trustee and the Custodian on behalf of the Indenture Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (b) except, if applicable, to determine if the Credit Line Agreement Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded. Upon its receipt of written notice from the Related Documents Servicer or the Insurer that a Recordation Event has occurred the Indenture Trustee shall take all necessary steps to prepare and submit for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare recordation an Assignment of Mortgage for each (or a blanket Assignment of Mortgage covering multiple Mortgage Loans if the same is permitted in any applicable jurisdiction) at the expense of the Servicer or, if the Servicer fails to pay such amounts or is no longer a party hereto, pursuant to Section 8.7(d)(ix) of the Indenture.
(f) The Sponsor shall sell, assign, transfer, set over and otherwise convey without recourse to the Indenture Trustee all right, title and interest of the Sponsor in and to any Eligible Substitute Mortgage Loan delivered to the Indenture Trustee on behalf of the Trust by the Sponsor pursuant to Section 2.03 or Section 2.05 hereof and all its right, title and interest to principal collected and interest accruing on such Eligible Substitute Mortgage Loan on and after the applicable Substitute Cut-Off Date; PROVIDED, HOWEVER, that the Sponsor shall reserve and retain all right, title and interest in and to payments of interest due on such Eligible Substitute Mortgage Loan prior to the applicable Substitute Cut-Off Date; PROVIDED, FURTHER, that neither the Trust nor the Indenture Trustee shall be obligated to fund any future advances to the related Mortgagor under such Eligible Substitute Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days In connection with any transfer and assignment of such Recordation Event to submit to the appropriate recording offices Assignments of an Eligible Substitute Mortgage Loan to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may Sponsor agrees to cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(viithe items described in Section 2.01(c) above and is not so delivered, on the Depositor will provide a copy date of such Title Insurance Policy to the Indenture Trusteetransfer and assignment or, or to the applicable Custodian on behalf of the Indenture Trusteeif a later delivery time is permitted by Section 2.01(c), as promptly as practicable after the execution and then no later than such later delivery hereof, but in any case within 180 days of the Closing Datetime.
(g) For Each Defective Mortgage Loans (if any) Loan that have been prepaid in full after the Cut off Date and prior is required to be repurchased or substituted pursuant to the Closing Dateprovisions this Agreement or the Purchase Agreement shall, upon such repurchase or substitution in accordance with the Depositorprovisions hereof, in lieu of delivering be released from the above documents, herewith delivers Trust and from the lien created by the Indenture. As to each Mortgage Loan released from the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received Trust in connection with such prepayment that are required to be deposited in the Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to repurchase thereof or the conveyance of an Eligible Substitute Mortgage Loan therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse, to or upon the applicable Custodian on behalf order of the Indenture Trustee shall be held by Sponsor, all of its right, title and interest in and to such released Mortgage Loan and all the Master Servicer or Trust's right title and interest to principal collected and interest accruing on such released Mortgage Loan on and after the applicable Servicer in trust for the benefit first day of the Indenture Trustee calendar month in which such Mortgage Loan is released; PROVIDED, HOWEVER, that the Trust shall reserve and the Securityholdersretain all right, title and interest in and to payments of principal and interest collected on such released Mortgage Loan prior to such date.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's delivery to or upon the order of the Sponsor on the Closing Date of the net proceeds from the sale of the Notes and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.03 and 3.04, in trust2.05), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections Collection due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) all of the Seller’s Sponsor's rights under the Purchase Agreement (including all representations and warranties of the Servicer contained therein); (iv) the Sponsor's rights under the hazard insurance policies; (ivv) the Reserve Fund; (vi) the Policy; (vvii) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale AgreementDemand Note; and (viiviii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the HELOC Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the review provided for in Section 2.02, it has received Issuer and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit that such sale should constitute a valid transfer and use assignment of the Securityholders Mortgage Loans and for the purposes and subject other Trust Property to the terms Issuer and conditions set forth the beneficial interest in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect title to the Mortgage Loans serviced and the other Trust Property shall not be part of the Sponsor's estate in the event of the filing of a bankruptcy petition by each Serviceror against the Sponsor under any bankruptcy law. In the event that, notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the property referred to in this Section 2.01 for the benefit of the Noteholders, the Residual Certificateholders and the Insurer. To the extent that the related [aggregate] Purchase Price fair market value of any [all] Additional Balance[s] Balance is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance, the difference between such Purchase Price fair market value and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price fair market value of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California and Delaware, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) the Servicer as debtor and the Sponsor as secured party, and (ii) the Sponsor as debtor and the Issuer as secured party and any amendments to UCC-1 financing statements required to reflect a change in the name or corporate structure of the Servicer or the Sponsor or the filing of any additional UCC-1 financing statements due to the Issuer all of its rights, title and interest under change in the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights principal office of the Depositor under Servicer or the Mortgage Loan Sale Agreement Sponsor (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders Noteholders' and the Insurer. The Issuer hereby accepts such assignment ' interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment of the Mortgage Loansassignment, the Depositor does hereby Servicer shall deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (each a "Related Document" and together for each Mortgage Loan, the "Mortgage File") with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assignedon the Closing Date:
(i) with respect to each any Closed-End Mortgage Loan, the original Mortgage Note endorsed in blank or endorsed with the following: "[Indenture Trustee] as Indenture Trustee for the GreenPoint Home Equity Loan Trust 200_-_", and with respect to any HELOC Mortgage Loan, the original Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blankblank in recordable form;
(Aiii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor shall deliver or cause to be delivered to the CustodianIndenture Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Sponsor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Indenture Trustee or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy policy, a title search or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer Sponsor hereby confirms to the Indenture Trustee as pledgee that it has caused the portions of the IssuerElectronic Ledgers relating to the Mortgage Loans as of the Closing Date to be clearly and unambiguously marked, and has made, or will make, the appropriate entries in its general accounting records to indicate that such Mortgage Loans have been transferred to the Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust in accordance with the terms hereof.
(d) Notwithstanding the characterization of the Notes as debt for Federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans to the Trust as provided herein as a sale, for the benefit of the Securityholderscertain non-tax purposes, of all the Credit Line Agreements Sponsor's right, title and interest in and to the Mortgage Loans, whether now existing or hereafter created, and the Mortgagesother property described above and all proceeds thereof. In the event such transfer is deemed not to be a sale for such purposes, the Sponsor grants to the Trust, a security interest in all of such party's right, title and interest in, to and under the Mortgage Loans, whether now existing or hereafter created, and the other property described above and all proceeds thereof; and this Agreement shall constitute a security agreement under applicable law.
(e) Upon Within 90 days following delivery of the occurrence of a Recordation EventMortgage Files to the Indenture Trustee pursuant to this Section, the Indenture Trustee shall cause the Custodian review each such Mortgage File to (i) segregate (a) ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Files from documents Loans identified on the Mortgage Loan Schedule and instruments relating in so doing the Indenture Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Indenture Trustee finds any document constituting a part of a Mortgage File not to mortgage loans that are not have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Indenture Trustee determines that such Mortgage File is otherwise defective in any material respect, the Indenture Trustee shall promptly upon the conclusion of its review notify the Sponsor and the Insurer, and the Sponsor shall have a period of 90 days after such notice within which to correct or cure any such defect. The Indenture Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Indenture Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (b) except, if applicable, to determine if the Credit Line Agreement Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded. Upon its receipt of written notice from the Related Documents Servicer that the long-term senior unsecured debt rating of the Servicer is no longer rated at least "____" by [First Rating Agency] and "____" by [Second Rating Agency], the Sponsor shall take all necessary steps to prepare and submit for recordation an Assignment of Mortgage (or a blanket Assignment of Mortgage covering multiple Mortgage Loans if the same is permitted in any applicable jurisdiction) in the name of the Indenture Trustee for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate within 30 days from the Related Documentsdate on which it receives such written notice.
(f) The Sponsor shall sell, assign, transfer, set over and (ii) prepare an Assignment otherwise convey without recourse to the Indenture Trustee all right, title and interest of the Sponsor in and to any Eligible Substitute Mortgage for each Loan delivered to the Indenture Trustee on behalf of the Trust by the Sponsor pursuant to Section 2.03 or Section 2.05 hereof and all its right, title and interest to principal collected and interest accruing on such Eligible Substitute Mortgage Loan on and after the applicable Substitute Cut-Off Date; provided, however, that the Sponsor shall reserve and retain all right, title and interest in and to payments of interest due on such Eligible Substitute Mortgage Loan prior to the applicable Substitute Cut-Off Date; provided, further, that neither the Trust nor the Indenture Trustee shall be obligated to fund any future advances to the related Mortgagor under such Eligible Substitute Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days In connection with any transfer and assignment of such Recordation Event to submit to the appropriate recording offices Assignments of an Eligible Substitute Mortgage Loan to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may Sponsor agrees to cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian items described in Section 2.01(c) on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy date of such Title Insurance Policy to the Indenture Trusteetransfer and assignment or, or to the applicable Custodian on behalf of the Indenture Trusteeif a later delivery time is permitted by Section 2.01(c), as promptly as practicable after the execution and then no later than such later delivery hereof, but in any case within 180 days of the Closing Datetime.
(g) For Each Defective Mortgage Loans (if any) Loan that have been prepaid in full after the Cut off Date and prior is required to be repurchased or substituted pursuant to the Closing Dateprovisions this Agreement or the Purchase Agreement shall, upon such repurchase or substitution in accordance with the Depositorprovisions hereof, in lieu of delivering be released from the above documents, herewith delivers Trust and from the lien created by the Indenture. As to each Mortgage Loan released from the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received Trust in connection with such prepayment that are required to be deposited in the Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to repurchase thereof or the conveyance of an Eligible Substitute Mortgage Loan therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse, to or upon the applicable Custodian on behalf order of the Indenture Trustee shall be held by Sponsor, all of its right, title and interest in and to such released Mortgage Loan and all the Master Servicer or Trust's right title and interest to principal collected and interest accruing on such released Mortgage Loan on and after the applicable Servicer in trust for the benefit first day of the Indenture Trustee calendar month in which such Mortgage Loan is released; provided, however, that the Trust shall reserve and the Securityholdersretain all right, title and interest in and to payments of principal and interest collected on such released Mortgage Loan prior to such date.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's delivery to or upon the order of the Sponsor on the Closing Date of the net proceeds from the sale of the Notes and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.05 and 3.04, in trust2.07), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections Collection due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) all of the Seller’s Sponsor's rights under the Purchase Agreement (including all representations and warranties of the Seller contained therein); (iv) the Sponsor's rights under the hazard insurance policies; (ivv) the Policy; (vvi) the Collection Account Demand Note and the Distribution Collection Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the Insurer; providedPROVIDED, howeverHOWEVER, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the HELOC Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the review provided for in Section 2.02, it has received Issuer and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit that such sale should constitute a valid transfer and use assignment of the Securityholders Mortgage Loans and for the purposes and subject other Trust Property to the terms Issuer and conditions set forth the beneficial interest in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect title to the Mortgage Loans serviced and the other Trust Property shall not be part of the Sponsor's estate in the event of the filing of a bankruptcy petition by each Serviceror against the Sponsor under any bankruptcy law. In the event that, notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the property referred to in this Section 2.01 for the benefit of the Noteholders, the Residual Certificateholders and the Insurer. To the extent that the related [aggregate] Purchase Price fair market value of any [all] Additional Balance[s] Balance is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance, the difference between such Purchase Price fair market value and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price fair market value of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign to filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California, Delaware and New York, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) the Servicer as debtor and the Sponsor as secured party, and (ii) the Sponsor as debtor and the Issuer all of its rights, title as secured party and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled any amendments to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership UCC-1 financing statements required to reflect a change in the Trust Estate shall be vested in name or corporate structure of the Issuer, subject the Servicer or the Sponsor or the filing of any additional UCC-1 financing statements due to the lien created by change in the Indenture in favor principal office of the Indenture Trustee, for Servicer or the benefit Sponsor (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Securityholders Noteholders' and the Insurer. The Issuer hereby accepts such assignment 's interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment assignment, the Servicer shall deliver to the Custodian on behalf of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (each a "RELATED DOCUMENT" and together for each Mortgage Loan, the "MORTGAGE FILE") with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assignedon the Closing Date:
(i) with respect to each any Closed End Mortgage Loan, the original Mortgage Note endorsed in blank or endorsed with the following: "GreenPoint Mortgage Funding, Inc. to the GreenPoint Home Equity Loan Trust 200_-_, by [Indenture Trustee], as trustee, for the Home Equity Loan-Backed Notes, Series 200_-_ without recourse", and with respect to any HELOC Mortgage Loan, the original Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor shall deliver or cause to be delivered to the CustodianIndenture Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Sponsor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “"Mortgage Identification Number” " of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignmentsintervening assignments, if anyany ("INTERVENING Assignments"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator GreenPoint Mortgage Funding, Inc. (and the endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer Sponsor hereby confirms to the Indenture Trustee as pledgee that it has caused the portions of the Issuer, for Electronic Ledgers relating to the benefit Mortgage Loans as of the SecurityholdersClosing Date to be clearly and unambiguously marked, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Eventhas made, or will make, the Indenture Trustee shall cause the Custodian appropriate entries in its general accounting records to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans indicate that are not such Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit have been transferred to the appropriate recording offices Assignments of Mortgage Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for Trust in accordance with the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recordingterms hereof.
(fd) In instances where a Title Insurance Policy is required to be delivered to Notwithstanding the Indenture Trustee or the applicable Custodian on behalf characterization of the Indenture Trustee under clause (c)(vii) above Notes as debt for federal, state and is not so deliveredlocal income and franchise tax purposes, the Depositor will provide a copy parties hereto intend to treat the transfer of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.the
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Transferor hereby sells, in consideration of the Issuer's delivery of the Notes transfers, assigns, sets over and the Residual Certificates otherwise conveys to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the IssuerDepositor, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 Section 2.02 and 3.04, in trust2.04), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Initial Mortgage Loan, including its Principal Asset Balance (including any Additional Balances related thereto) and all collections in respect thereof received on or after the Cut-Off Date (excluding Interest Collections payments in respect of accrued interest due on or prior to the Cut-Off Date); (ii) property that secured a an Initial Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Transferor's rights under the Purchase Agreement (including all representations and warranties of the Seller contained therein); and (iv) the Transferor's rights under the hazard insurance policies. The Transferor has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery of this Agreement, hereby sells, transfers, assigns, sets over and otherwise conveys to the Trust, without recourse (subject to Sections 2.02 and 2.04), all of its right, title and interest in and to (i) each Initial Mortgage Loan, including its Asset Balance and all collections in respect thereof received on or after the Cut-Off Date (excluding payments in respect of accrued interest due prior to the Cut-off Date); (ii) property that secured an Initial Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) all rights under the Purchase Agreement assigned by the Transferor to the Depositor (including all representations and warranties of the Seller contained therein); (iv) the Depositor's rights under the hazard insurance policies; (ivv) the Spread Account; (vi) the Policy; (vvii) the Collection Account and the Distribution Funding Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (viiviii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of NoteholdersCertificateholders; PROVIDED, the Residual Certificateholders and the Insurer; provided, howeverHOWEVER, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the HELOC Mortgage Loans, Additional Balances shall be part of the related Principal Asset Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the DepositorInvestor Certificateholders. The foregoing sale, transfer, assignment, set-over, deposit over and conveyance does not to the Trust shall be made to the Trustee, on behalf of the Trust, and is not intended each reference in this Agreement to result such transfer, assignment, set-over and conveyance shall be construed accordingly. Each of the Transferor and the Depositor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the filing of all necessary continuation statements for the UCC-1 financing statements filed in creation the States of ( ) and ( ), respectively, (which shall have been filed within 10 days of the Closing Date) describing the Cut-Off Date Asset Balances and Additional Balances and naming (i) the Transferor as debtor and the Depositor as secured party and (ii) the Depositor as debtor and the Trustee as secured party and any amendments to UCC-1 financing statements required to reflect a change in the name or assumption corporate structure of the Transferor or the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Certificateholders' and Credit Enhancer's interests in each Cut-Off Date Asset Balance and Additional Balances and the proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
(c) [Reserved.]
(d) and the Mortgage Files). In connection with such transfer and assignment of the Mortgage Loansassignment, the Depositor does hereby Servicer shall deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (the "RELATED DOCUMENTS") with respect to each Initial Mortgage Loan (on the Closing Date and will deliver with respect to each a “Subsequent Mortgage File”) so transferred and assignedLoan on the related Subsequent Transfer Date:
(i) with respect to each Mortgage Loan, the original Credit Line AgreementMortgage Note endorsed in blank;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blankblank in recordable form;
(Aiii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Transferor, at the direction of the Depositor, shall deliver or cause to be delivered to the Custodian, as agent for the Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Depositor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignmentsintervening assignments, if anyany ("INTERVENING ASSIGNMENTS"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Depositor or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Transferor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy policy, a title search or guaranty of title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage LoansLoan; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge ; PROVIDED, HOWEVER, that as to any Mortgage Loan, if (a) as evidenced by an Opinion of Counsel delivered to and agree that the in form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer and substance satisfactory to the Indenture Trustee as pledgee and the Credit Enhancer, (x) an optical image or other representation of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to related documents specified in clauses (i) segregate through (aviii) above are enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Files from documents and instruments relating Loan to mortgage loans that are not transfer its interest in such Mortgage Loans Loan, and (b) the Credit Line Agreement from retention of such documents in such format will not result in a reduction in the Related Documents then current rating of the Investor Certificates, without regard to the Policy, such optical image or other representation may be held by the Servicer, as custodian for the Trustee or assignee in lieu of the physical documents specified above. The Transferor hereby confirms to the Trustee that it has caused the portions of the Electronic Ledgers relating to the Initial Mortgage Loans as of the Closing Date, and that it will cause such Electronic Ledgers with respect to each Subsequent Mortgage Loan as of the related Subsequent Transfer Date, to be clearly and shall assemble unambiguously marked, and maintain has made, or will make, the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of appropriate entries in its general accounting records to indicate that such Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit Loans have been transferred to the appropriate recording offices Assignments of Mortgage Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the TrustTrust in accordance with the terms hereof. The Servicer hereby confirms to the Trustee that it will clearly and unambiguously make appropriate entries in its general accounting records indicating that each Subsequent Mortgage Loan constitutes part of the Trust and is serviced by it on behalf of the Trust in accordance with the terms hereof as of the related Subsequent Transfer Date. Notwithstanding the characterization of the Class A Certificates as debt for Federal, which may be blanket assignments if permitted by applicable lawstate and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans to the Trust as provided herein as a sale, for certain non-tax purposes, of all the Transferor's and Depositor's right, title and interest in and to the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee whether now existing or hereafter created, and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee other property described above and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgageall proceeds thereof. In the event such transfer is deemed not to be a sale for such purposes, the Transferor hereby grants to the Depositor and the Depositor grants to the Trust, a security interest in all of such party's right, title and interest in, to and under the Mortgage Loans, whether now existing or hereafter created, and the other property described above and all proceeds thereof; and this Agreement shall constitute a security agreement under applicable law. Within 90 days following delivery of the Mortgage Files to the Trustee pursuant to this Section, the Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such Assignment of Mortgage is lost or returned unrecorded because 90-day period the Trustee finds any document constituting a part of a defect thereinMortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Indenture Trustee determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall cause promptly upon the Custodian to promptly prepare a substitute Assignment conclusion of Mortgage or cure such defect, as its review notify the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so deliveredTransferor, the Depositor will provide and the Credit Enhancer, and the Transferor shall have a copy period of 90 days after such Title Insurance Policy notice within which to correct or cure any such defect. The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Indenture TrusteeTrustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereofdo so or whether any signature thereon is genuine, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received in connection with such prepayment that are only be required to determine whether a document has been executed, that it appears to be deposited in the Collection Account pursuant what it purports to Section 4.07(d) have been so deposited. All original documents be, and, where applicable, that are not delivered it purports to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholdersrecorded.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Greenpoint Mortgage Securities Inc/)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Depositor, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with over and otherwise convey to the Issuer, Trust without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.02 and 3.04, in trust, 2.04) all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any all Additional Balances related theretoBalances) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Depositor's rights (but none of its obligations) under the Purchase Agreement; (iv) the Depositor's rights under the hazard insurance policies; (iv) the Policy; , (v) the Collection amounts on deposit in the Spread Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets transferred to the Depositor pursuant to the Purchase Agreement or included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the InsurerInvestor Certificateholders; provided, however, that neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, All Additional Balances relating to any Draws under a Mortgage Note shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersInvestor Certificateholders. The Indenture Trustee declares thatforegoing transfer, subject assignment and conveyance to the review provided Trust shall be made to the Trustee on behalf of the Trust, and each reference in this Agreement to such transfer, assignment and conveyance shall be construed accordingly. The Depositor agrees to take or cause to be taken such actions (including the maintenance of possession by the Trustee of the Mortgage Loans and the Mortgage Files) and execute such documents (including without limitation the filing of all necessary continuation statements for the UCC-1 financing statements filed in Section 2.02the States of Arizona, it has received California, Colorado, Illinois, Indiana, Kentucky, New York, Ohio, Utah and Wisconsin (which shall hold be filed within 90 days of the Trust EstateClosing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming the Depositor as debtor and the Trustee as secured party, and any amendments to UCC-1 financing statements required to reflect a change in the name or corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 30 days of any event necessitating such filing) as Indenture are necessary to perfect and protect the interests of the Trustee, the Investor Certificateholders and the Credit Enhancer in trust, for each Cut-Off Date Principal Balance and Additional Balance and the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estateproceeds thereof.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
(c) [Reserved.]
(d) In connection with such transfer and assignment by the Depositor, and pursuant to Section 2.04 of the Mortgage LoansPurchase Agreement, the Depositor does hereby shall cause each Seller to deliver to, and deposit with, or cause to be delivered within 120 days of the Closing Date to and deposited with, the Indenture Trustee (or any Custodian on behalf of the Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, 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 on its face or by allonge attached thereto in blank or to the order of the Trustee in the following form: "Pay to the order of The Bank of New York, as trustee for the registered holders of Xxxx Xxx XXXXX Xxxxx 0000-0, XXXXX Asset-Backed Certificates, Series 1999-1, without recourse, representation or warranty, express or implied," and an original Assignment of Mortgage endorsed in blank prepared in recordable form (together, the "Related Documents"); provided, however, that as to any Mortgage Loan, if (a) as evidenced by an Opinion of Counsel delivered to and in form and substance satisfactory to the Trustee and the Credit Line Enhancer, (x) an optical image or other representation of each Related Document is enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Loan to transfer its interest in such Mortgage Loan, and (b) the retention of the Related Documents in such format will not result in a reduction in the then current rating of the Investor Certificates, without regard to the Policy, then such optical image or other representation may be delivered to the Trustee (or any Custodian on behalf of the Trustee) or assignee in lieu of physical copies of the Related Documents. Within 90 days following delivery of the Mortgage Files to the Trustee (or any Custodian on behalf of the Trustee) pursuant to the preceding paragraph, the Trustee (or any Custodian on behalf of the Trustee) shall review each such Mortgage File to ascertain that all Related Documents have been executed and received, and that such Related Documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule, and in so doing the Trustee (or any Custodian on behalf of the Trustee) may rely on the purported due execution and genuineness of any signature thereon. The Trustee shall notify the Servicer in writing upon completion of such review. If within such 90-day period the Trustee (or any Custodian on behalf of the Trustee) finds any Related Document constituting a part of a Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in the Mortgage Loan Schedule or, if in the course of its review, the Trustee (or any Custodian on behalf of the Trustee) determines that such Mortgage File is otherwise defective in any material respect, the Trustee shall promptly upon the conclusion of such review notify the Depositor, the applicable Seller and the Credit Enhancer, and the related Seller shall have a period of 90 days after such notice to correct or cure any such defect pursuant to Section 2.05(b) of the Purchase Agreement;. The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Trustee shall have no responsibility for determining the content of any document, whether any document is valid and binding or enforceable, whether the text of any assignment or endorsement is in proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded. The Depositor hereby confirms to the Trustee that it has made the appropriate entries in its general accounting records to indicate that such Mortgage Loans have been transferred to the Trust at its direction. The Servicer hereby confirms to the Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust in accordance with the terms hereof. The Servicer agrees not to notify the obligors on the Mortgage Loans of the transfer of the Mortgage Loans to the Trust unless required to do so by the terms of the Mortgage Loans or applicable law. It is the express intent of the parties hereto that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Agreement be, and be construed as, a sale of all of the Depositor's right, title and interest in the Mortgage Loans by the Depositor to the Trustee. Further, it is not the intention of the parties that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor; however, if, notwithstanding the intent of the parties, the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then, (a) this Agreement also shall be deemed to be, and hereby is, a security agreement within the meaning of Articles 8 and 9 of the Uniform Commercial Code in effect in the applicable state; (b) the conveyance provided for in this Agreement shall be deemed to be, and hereby is, a grant by the Depositor to the Trustee of a security interest in and to all of the Depositor's right, title, and interest, whether now owned or hereafter acquired, in and to:
(iiI) for All accounts, contract rights, general intangibles, chattel paper, instruments, documents, money, deposit accounts, certificates of deposit, goods, letters of credit, advices of credit, investment property and financial assets consisting of, arising from or relating to any of the property described in (A) through (D) below: (A) each Mortgage Loan identified on the Mortgage Loan Schedule, including all Eligible Substitute Mortgage Loans, together with (a) the Mortgage Note and the related Mortgage and (b) its Principal Balance and all Additional Balances and all collections in respect thereof received on or after the Cut-Off Date, (B) property that secured a Mortgage Loan that is not a MERS acquired by foreclosure or deed in lieu of foreclosure; (C) the Purchase Agreement, (D) any hazard insurance policies in respect of the Mortgage Loan, an unsigned Loans; and un-notarized but otherwise complete original Assignment of Mortgage (E) the amounts on deposit in blank;the Spread Account; and
(AII) All proceeds of the collateral described in (I).
(c) The possession by the Trustee or its designee of the Mortgage Notes, Assignments of Mortgages and such other goods, letters of credit, advices of credit, instruments, money, documents or chattel paper shall be deemed to be "possession by the secured party," or possession by a purchaser or a person designated by him or her, for each Mortgage Loan that is not a MERS Mortgage Loan, purposes of perfecting the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior security interest pursuant to the Closing Date because of a delay caused by Uniform Commercial Code as in force in the public recording office where relevant jurisdiction; and notifications to persons holding such original Mortgage has been delivered for recordation property, and acknowledgments, receipts or because confirmations from persons holding such original Mortgage has been lostproperty, the Originator shall deliver or cause be deemed to be delivered notifications to, or acknowledgments, receipts or confirmations from, bailees or agents (as applicable) of the Trustee or its designee for the purpose of perfecting such security interest under applicable law. Subject to the Custodian, a true and correct copy of such Mortgage, together with (i) in provisions herein permitting the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched Servicer to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title commingle amounts collected with respect to the related Mortgaged Property;
(vi) Mortgage Loans with other general collections of the original Servicer, the Depositor and the Trustee at the direction of any guaranty executed the Depositor, to the extent consistent with this Agreement, shall take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in connection with the Mortgage Loan;
(vii) Loans and the original proceeds thereof, such security interest would be deemed to be a perfected security interest of each assumption, modification, consolidation or substitution agreement, if any, relating to first priority under applicable law and will be maintained as such throughout the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee term of the IssuerAgreement. In connection herewith, for the benefit Trustee shall have all of the Securityholders, rights and remedies of a secured party and creditor under the Credit Line Agreements and Uniform Commercial Code as in force in the Mortgages.
(e) Upon relevant jurisdiction. Following the occurrence of a Recordation Event, the Indenture Trustee shall cause shall, as promptly as practicable but in no event more than 90 days after receiving notice of such event, at the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare Servicer's expense, record an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf Loan in favor of the Trust, Trustee (which may be a blanket assignments assignment if permitted by applicable law) in the appropriate real property or other records in the jurisdiction in which the Mortgaged Property is located, for or the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide Depositor shall deliver to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable addressed to the Indenture Trustee and the Insurer, Credit Enhancer to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located recording is not necessary required to protect the interests Trustee's right, title and interest in and to the related Mortgage Loan or, in case a court should recharacterize the sale of the Owner TrusteeMortgage Loans as a financing, to perfect a first priority security interest in favor of the Indenture Trustee or the Noteholders in the related MortgageMortgage Loan, which Opinion of Counsel also shall be reasonably acceptable to each of the Rating Agencies (as evidenced in writing) and the Credit Enhancer. In The Trustee is hereby appointed as the attorney-in-fact of the Servicer with the power to prepare, execute and record Assignments of Mortgages in the event that any such Assignment of Mortgage is lost or returned unrecorded because of the Servicer fails to do so on a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, timely basis as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recordingprovided in this paragraph.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc One Abs Corp)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Depositor, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with over and otherwise convey to the Issuer, Trust without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.02 and 3.04, in trust, 2.04) all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, to: (i) each Mortgage Loan, including its Principal Asset Balance (including any all Additional Balances related theretoBalances) and all collections in respect thereof received [received] [due] after the Cut-Off off Date [(excluding Interest Collections due payments in respect of accrued interest [due] [received] on or prior to the Cut-Off off Date)]; (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Depositor's rights under the Purchase Agreement; (iv) the Depositor's rights under the hazard insurance policies; (iv) the Policy; (v) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the InsurerCredit Enhancer; provided, however, and (vi) all proceeds of the foregoing; provided that neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Asset Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On [In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. Investor Certificateholders.] The Indenture Trustee declares thatforegoing transfer, subject assignment, set- over and conveyance to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related ServicerTrustee, which shall accrue interest and be payable according to the terms on behalf of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignmentTrust, and shall be entitled each reference in this Agreement to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit over and conveyance does not shall be construed accordingly. The Depositor agrees to take or cause to be taken such actions and is not intended execute such documents, including without limitation, the filing of all necessary continuation statements for the UCC-1 financing statements filed in the State of California (which shall have been filed within 90 days of the Closing Date) describing the Cut-off Date Asset Balances and Additional Balances and naming the Depositor as debtor and the Trustee as secured party and any amendments to result UCC-1 financing statements required to reflect a change in creation the name or assumption corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 90 days of any event necessitating such filing) as are necessary to perfect and protect the Certificateholders' and Credit Enhancer's interests in each Cut-off Date Asset Balance and Additional Balances and the proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except and the Mortgage Files, which possession will, subject to the terms hereof, be maintained by the Master Servicer as specifically set forth herein.
(c) [Reserved.]
(d) custodian and bailee of the Trustee). In connection with such transfer and assignment of by the Mortgage LoansDepositor, the Depositor does hereby deliver to, Master Servicer acknowledges that it is holding as custodian and deposit with, or cause to be delivered to and deposited with, bailee for the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
(ithe "Related Documents") with respect to each Mortgage Loan, :
(A) the original Credit Line AgreementMortgage Note endorsed in blank; or (B) with respect to any Lost Mortgage Note, a lost not affidavit from the Seller stating that the original Mortgage Note was lost or destroyed together with a copy of such Note;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blankblank in recordable form;
(Aiii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor, at the direction of the Depositor, shall deliver or cause to be delivered to the Custodian, as agent for the Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Depositor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Depositor or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either (1) for each Mortgage Loan with a Credit Limit in excess of $[____________], a title policy or guaranty (2) for all other Mortgage Loans, either a title policy, a title search, a limited coverage policy or other assurance of title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage LoansLoan; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge ; provided that as to any Mortgage Loan, if (a) as evidenced by an Opinion of Counsel delivered to and agree that the in form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer and substance satisfactory to the Indenture Trustee as pledgee and the Credit Enhancer, (x) an optical image or other representation of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to related documents specified in clauses (i) segregate through (aviii) above are enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Files from documents and instruments relating Loan to mortgage loans that are not transfer its interest in such Mortgage Loans Loan, and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days retention of such Recordation Event to submit documents in such format will not result in a reduction in the then current rating of the Investor Certificates, without regard to the appropriate recording offices Assignments Policy, such optical image or other representation may be held by the Master Servicer, as custodian for the Trustee or assignee in lieu of Mortgage the physical documents specified above. The Sponsor hereby confirms to the Indenture Trustee that it has caused the portions of the Electronic Ledgers relating to the Mortgage Loans to be clearly and unambiguously marked, and has made the appropriate entries in its general accounting records, to indicate that such Mortgage Loans have been transferred to the Trust at the direction of the Depositor. The Master Servicer hereby confirms to the Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the TrustTrust in accordance with the terms hereof. Notwithstanding the characterization of the Investor Certificates as debt for Federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans as provided herein as a sale for accounting and other purposes, by the Depositor to the Trust of all the Depositor's right, title and interest in and to the Mortgage Loans and other property described above. In the event such transfer is deemed not to be a sale as contemplated in the immediately preceding sentence, the Depositor hereby grants to the Trust a security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans whether now existing or hereafter created, all monies due or to become due on the Mortgage Loans and all proceeds of any thereof; and this Agreement shall constitute a security agreement under applicable law. Except as hereinafter provided, the Master Servicer shall be entitled to maintain possession of all of the foregoing documents and instruments and shall not be required to deliver any of them to the Trustee. In the event, however, that possession of any of such documents or instruments is required by any Person (including the Trustee) acting as successor master servicer pursuant to Section 7.04 or 8.02 in order to carry out the duties of Master Servicer hereunder, then such successor shall be entitled to request delivery, at the expense of the Master Servicer, of such documents or instruments by the Master Servicer and to retain such documents or instruments for servicing purposes; provided that the Trustee or such master servicer shall maintain such documents at such offices as may be required by any regulatory body having jurisdiction over such Mortgage Loans. The Master Servicer's right to maintain possession of the documents enumerated above shall continue so long as the long term unsecured debt of [__________________________] is assigned ratings of at least "[____]" by [Standard & Poor's] and "[____]" by [Moody's]. At such time as the condition specified in thx xxxxxding sentence is not satisfied, as promptly as practicable but in no event more than 90 days in the case of clause (i) below and 60 days in the case of clause (ii) below following the occurrence of such event (a "Delivery Event"), the Master Servicer shall, at its expense, (i) either (x) record an assignment of Mortgage in favor of the Trustee (which may be a blanket assignments assignment if permitted by applicable law, for ) in the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide appropriate real property or other records or (y) deliver to the Indenture Trustee and the Insurerassignment of such Mortgage in favor of the Trustee in form for recordation, together with an Opinion of Counsel addressed to the Trustee [and the Credit Enhancer] to the effect that recording is not required to protect the Trustee's right, title and interest in and to the related Mortgage Loan or, in case a form court should recharacterize the sale of the Mortgage Loans as a financing, to perfect a first priority security interest in favor of the Trustee in the related Mortgage Loan, which Opinion of Counsel also shall be reasonably acceptable to each of the Rating Agencies (as evidenced in writing) and the Credit Enhancer, and (ii) unless an Opinion of Counsel, reasonably acceptable to the Indenture Trustee Trustee, the Rating Agencies (as evidenced in writing) and the InsurerCredit Enhancer, is delivered to the Trustee [and the Credit Enhancer] to the effect that recordation delivery of an Assignment of the Mortgage in the state where the related Mortgaged Property is located Files is not necessary to protect the interests of the Owner Trustee's right, the Indenture Trustee or the Noteholders title and interest in the related Mortgage. In Mortgage Loans; provided that the event that any such Assignment lack of delivery will not result in a reduction in the then current rating of the Investor Certificates, without regard to the Policy, deliver the related Mortgage is lost Files to the Trustee or returned unrecorded because to a custodian located in the State of a defect therein, California appointed by the Indenture Trustee shall cause and acceptable to the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as Rating Agencies [and the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required Credit Enhancer] to be delivered to held by the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above in trust, upon the terms herein set forth, for the use and is not so delivered, benefit of all present and future Certificateholders and the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture TrusteeTrustee shall retain possession thereof except to the extent the Master Servicer requires any Mortgage Files for normal servicing as contemplated by Section 3.07. The Trustee is hereby appointed as the attorney-in-fact of the Master Servicer with the power to prepare, execute and record Assignments of Mortgages in the event that the Master Servicer fails to do so on a timely basis as promptly as practicable after provided in this paragraph. Within 90 days following delivery, if any, of the Mortgage Files to the Trustee pursuant to the preceding paragraph, the Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Loans identified on the Mortgage Loan Schedule and in so doing the Trustee may rely on the purported due execution and delivery hereofgenuineness of any signature thereon. If within such 90-day period the Trustee finds any document constituting a part of a Mortgage File not to have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, but if in the course of its review, the Trustee determines that such Mortgage File is otherwise defective in any case material respect, the Trustee shall promptly upon the conclusion of its review notify the Sponsor, the Depositor and the Credit Enhancer, and the Sponsor shall have a period of 90 days after such notice within 180 days which to correct or cure any such defect; provided that the Sponsor shall not be obligated to correct or cure any such defect if such defect constitutes fraud in the origination of the Closing Date.
(g) For related Mortgage Loans (if any) that have been prepaid in full after Loan and the Cut off Date and prior to Sponsor did not, at the time of origination or on the Closing Date, have actual knowledge of such fraud. The Trustee shall have no responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the DepositorTrustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in lieu proper or recordable form (except, if applicable, to determine if the Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of delivering the above documents, herewith delivers to the Indenture Trusteeany applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to the applicable Custodian on behalf of the Indenture Trusteedo so or whether any signature thereon is genuine, an Officer’s Certificate which but shall include a statement to the effect that all amounts received in connection with such prepayment that are only be required to determine whether a document has been executed, that it appears to be deposited in the Collection Account pursuant what it purports to Section 4.07(d) have been so deposited. All original documents be, and, where applicable, that are not delivered it purports to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholdersrecorded.
Appears in 1 contract
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Issuer, without recourse, subject to Sections 2.02, 2.03, 3.03 and 3.04, in trust, all the right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including the right to purchase any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the SellerDepositor’s rights under the hazard insurance policiesInsurance Policies; (iv) the Depositor’s rights in and to the Policy; (v) the Collection Account, the Reserve Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other property owned by the Trust Property and all other assets included or to be included in the Issuer for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither none of the Indenture Trustee nor Trustee, the Master Servicer or the Issuer assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances Draws to the Mortgagor thereunder, and neither none of the Issuer nor Issuer, the Administrator, the Master Servicer or the Indenture Trustee shall be obligated or permitted to fund any such future advancesDraws. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer on the Closing Date pursuant to this Section 2.01(a), and are therefore part of the Trust PropertyEstate. On or prior to the Closing Date, the Depositor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersHolders of the Class A Notes. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Serviceroccurs, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] Balances is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balances, the difference between such Purchase Price Master Servicer shall deliver to the Indenture Trustee and the Holder of the Class L Certificates two Business Days prior to the following Remittance Date an Advance Notice including the aggregate amount of the expected Additional Balance Advance Amount. Upon receipt of such cash consideration notice and in any event no later than two Business Days prior to the following Payment Date, the Holder of the Class L Certificate shall be deemed make an advance to the Trust in the amount specified in such Advance Notice by depositing such amount into the Reserve Account. The Indenture Trustee shall cause such amount to be a loan made remitted to the Issuer by the related ServicerServicer on such following Payment Date. In addition, which shall accrue interest and be payable according to the terms of the Indenture. On on and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, the Holder of the Class L Certificate shall purchase Additional Balances that are transferred to the Trust (as such Additional Balances are conveyed and in the amounts specified by the Master Servicer) by depositing into the Reserve Account the amount of the Draws relating to such Additional Balances, which amount shall be deemed to be a capital contribution made disbursed by the Indenture Trustee to the Issuer Servicer. The Class Principal Balance of the Class L Certificates will be increased by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price amount of any such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemedAdvance Amounts or Draws. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and Agreement, the Transfer Servicing Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement Agreement, the Servicing Agreements and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders Noteholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Agreement, the Servicing Agreements and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
(c) [ReservedIt is agreed and understood by the Depositor and the Issuer (and the Depositor so represents and recognizes) that it is not intended that any Mortgage Loan to be included in the Trust Estate be (i) a “High-Cost Home Loan” as defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the Indiana Home Loan Practices Act effective January 1, 2005 .]
(d) In connection with such transfer and assignment of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, 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 Credit Line Agreement;
(ii) for each if such Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(iii) (A) for each if such Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any such Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each if such Mortgage Loan is a MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each if such Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the related Mortgage from the borrower Mortgagor to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy Title Insurance Policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the such Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the such Mortgage LoansLoan; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the related Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the SecurityholdersNoteholders and the Insurer, of the Credit Line Agreements and the Mortgages.
(ei) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit submit, at the expense of the Seller, to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, the Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, Insurer an Opinion of Counsel in a form reasonably acceptable to the Owner Trustee, Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders Securityholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare prepare, at the expense of the Seller, a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian Custodian, at the expense of the Seller, to submit each such Assignment of Mortgage for recording.
(ii) With respect to each MERS Mortgage Loan, the Master Servicer shall cause the applicable Servicer, at the expense of the Depositor, to take such actions as are necessary to cause the Indenture Trustee 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.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(viid)(v) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers shall deliver to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 1 contract
Samples: Transfer and Servicing Agreement (Lehman ABS Corp. Home Equity Loan Trust 2005-1)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designeeSeller, and concurrently with the execution and delivery of this Agreement, the Seller does hereby sell, transfer, assign, set over, deposit with and otherwise convey to the Depositor, without recourse, and the Depositor does hereby sell, transfer, assign, set over, deposit with and otherwise convey to the Issuer, without recourse, subject to Sections 2.02, 2.03, 3.03 and 3.04, in trust, all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Initial Mortgage Loan, including its Principal Balance (including the right to purchase any Additional Balances related thereto) and all collections in respect thereof received after the Initial Cut-Off Date (excluding interest collections due on or prior to the Initial Cut-Off Date); (ii) each Subsequent Mortgage Loan (including any Additional Balances related thereto) and all collections in respect thereof received after the related Subsequent Cut-Off Date (excluding Interest Collections interest collections due on or prior to the such related Subsequent Cut-Off Date); (iiiii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iiiiv) the Seller’s Originator's rights under the hazard insurance policies; (iv) the PolicyInsurance Policies; (v) the Collection Account, the Reserve Account, the Pre-Funding Account and the Distribution Payment Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other property owned by the Trust Property and all other assets included or to be included in the Issuer for the benefit of Noteholders, Noteholders and the Residual Certificateholders and the InsurerCertificateholders; providedPROVIDED, howeverHOWEVER, neither of the Indenture Trustee nor the Issuer assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances Draws to the Mortgagor thereunder, and neither of the Issuer nor the Indenture Trustee shall be obligated or permitted to fund any such future advancesDraws. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer on the Closing Date pursuant to this Section 2.01(a), and are therefore part of the Trust Property. On or prior to the Closing Date, the Depositor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersEstate. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior The Seller and Depositor hereby agree that as consideration for each Additional Balance, the Issuer shall direct and hereby directs the Servicer to fund such Additional Balances in an amount equal to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of therefore. Each Additional Balance shall first be funded from the Principal Remittance Amount on deposit on any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of in the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerAccount. To the extent that the Seller receives cash consideration for the entire Purchase Price for any Additional Balance exceeds the Principal Remittance Amount on deposit in the Collection Account on such day, the Servicer shall fund the difference of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made from its own funds by depositing such amount into the Reserve Account and deliver to the Issuer Holder of the Class G Certificates an Advance Notice including the aggregate amount of such Additional Balance Advance Amount. The Holder of the Class G Certificate, by accepting such Certificate, hereby agrees to reimburse the Servicer for such Additional Balance Advance Amount. In the event that the Holder of the Class G Certificate is not an affiliate of the Servicer, the Holder of the Class G Certificate shall make an advance to the Trust in the amount specified in such Advance Notice by depositing such amount into the Reserve Account. The Indenture Trustee shall cause such amount to be remitted from the Reserve Account to the Servicer on the following Payment Date. The Class Principal Balance of the Class G Certificates will be increased by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee amount of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinsuch Additional Balance Advance Amounts.
(c) [Reserved.]
(d) In connection with such transfer It is agreed and assignment of understood by the Mortgage LoansSeller, the Depositor does hereby deliver to, and deposit with, or cause the Issuer (and the Depositor so represents and recognizes) that it is not intended that any Mortgage Loan to be delivered to and deposited with, included in the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
Trust Estate be (i) with respect to each Mortgage a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, the original Credit Line Agreement;
2003, (ii) for each Mortgage a "High-Cost Home Loan" as defined in the New Mexico Home Loan that is not Protection Act effective January 1, 2004, (iii) a MERS "High-Cost Home Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) " as defined in the case of a delay caused by the public recording officeMassachusetts Predatory Home Loan Practices Act effective November 7, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official 2004 or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage "High Cost Home Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) " as defined in the case of a delay caused by the public recording officeIndiana Home Loan Practices Act effective January 1, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages2005.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Funding Trust 2005-He1)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's ’s delivery to or upon the order of the Sponsor on the Closing Date of the net proceeds from the sale of the Notes and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement and the Indenture, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.03 and 3.04, in trust2.05), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) the Assignment Agreement, to the extent it relates to the Mortgage Loans; (iii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iiiiv) the SellerSponsor’s rights under the hazard insurance policies; (ivv) the Policy; (vvi) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the Issuer and that such sale should constitute a valid transfer and assignment of the Mortgage Loans and other Trust Property to the Issuer and the beneficial interest in and title to the Mortgage Loans and the other Trust Property shall not be part of the Sponsor’s estate in the event of the filing of a bankruptcy petition by or against the Sponsor under any bankruptcy law. In the event that, subject notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the review provided for property referred to in this Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, 2.01 for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receiptNoteholders, the Issuer has issued Residual Certificateholders and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Insurer. Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Serviceroccurs, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] Balance is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance, the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related ServicerSponsor, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, to the extent that the Purchase Price of any Additional Balances Balance is greater than the cash consideration paid by the Issuer for such Additional Balance, the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign to filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California, Delaware and New York, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) in the case of the Cut-Off Date Principal Balances, (A) Terwin Advisors LLC as debtor and the Sponsor as secured party, (B) the Sponsor as debtor and the Issuer all as secured party and (ii) in the case of its rightsAdditional Balances, title and interest under (A) the Mortgage Loan Sale Agreement Servicer as debtor and the Transfer Agreements Sponsor as secured party, and (B) the Sponsor as debtor and the Transfer Agreements Issuer as secured party and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled any amendments to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership UCC-1 financing statements required to reflect a change in the Trust Estate shall be vested in name or corporate structure of the Issuer, subject the Servicer, Terwin Advisors LLC or the Sponsor or the filing of any additional UCC-1 financing statements due to the lien created by change in the Indenture in favor principal office of the Indenture TrusteeServicer, for the benefit Sponsor or Terwin Advisors LLC (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Securityholders Noteholders’ and the Insurer. The Issuer hereby accepts such assignment ’s interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee Custodian of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, 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 Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lostassignment, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause the following documents or instruments (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.each a
Appears in 1 contract
Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities LLC)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with and otherwise convey to the Issuer, without recourse, subject to Sections 2.02, 2.03, 3.03 and 3.04, in trust, all the right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s rights under the hazard insurance policies; (iv) the Policy; (v) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer on the Closing Date pursuant to this Section 2.01(a), and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
(c) [Reserved.]
(d) In connection with such transfer and assignment of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, 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 Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(iii) (A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut Cut-off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Thornburg Mortgage Securities Corp)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in consideration of the IssuerIssuing Entity's delivery of the Notes and the Residual Certificates to the Depositor or its designeeSeller, and concurrently with the execution and delivery of this Agreement, the Depositor Seller does hereby sell, transfer, assign, set over, deposit with and otherwise convey to the IssuerDepositor, without recourse, subject and the Depositor does hereby sell, transfer, assign, set over, deposit with and otherwise convey to Sections 2.02the Issuing Entity, 2.03, 3.03 and 3.04without recourse, in trust, all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Initial Mortgage Loan, including its Principal Balance (including the right to purchase any Additional Balances related thereto) and all collections in respect thereof received after the Initial Cut-Off Date (excluding interest collections due on or prior to the Initial Cut-Off Date); (ii) each Subsequent Mortgage Loan (including any Additional Balances related thereto) and all collections in respect thereof received after the related Subsequent Cut-Off Date (excluding Interest Collections interest collections due on or prior to the such related Subsequent Cut-Off Date); (iiiii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iiiiv) the Seller’s Originator's rights under the hazard insurance policies; (iv) the PolicyInsurance Policies; (v) the Collection Account Account, the Reserve Account, the Pre-Funding Accounts and the Distribution Payment Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other property owned by the Trust Property and all other assets included or to be included in the Issuer Issuing Entity for the benefit of Noteholders, Noteholders and the Residual Certificateholders and the InsurerCertificateholders; providedPROVIDED, howeverHOWEVER, neither of the Indenture Trustee nor the Issuer Issuing Entity assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances Draws to the Mortgagor thereunder, and neither of the Issuer Issuing Entity nor the Indenture Trustee shall be obligated or permitted to fund any such future advancesDraws. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Issuing Entity on the Closing Date pursuant to this Section 2.01(a), and are therefore part of the Trust Property. On or prior to the Closing Date, the Depositor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersEstate. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer Issuing Entity has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior The Seller and Depositor hereby agree that as consideration for each Additional Balance, the Issuing Entity shall direct and hereby directs the Servicer to fund such Additional Balances in an amount equal to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of therefore. Each Additional Balance shall first be funded from the Group I Principal Remittance Amount or the Group II Principal Remittance Amount, as applicable, on deposit on any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of in the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the SellerAccount. To the extent that the Seller receives cash consideration for the entire Purchase Price for any Additional Balance exceeds the Group I Principal Remittance Amount or the Group II Principal Remittance Amount, as applicable, on deposit in the Collection Account on such day, the Servicer shall fund the difference of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made from its own funds by depositing such amount into the Reserve Account and deliver to the Issuer Holder of the Class G Certificates an Advance Notice including the aggregate amount of such Additional Balance Advance Amount. The Holder of the Class G Certificate, by accepting such Certificate, hereby agrees to reimburse the Servicer for such Additional Balance Advance Amount. In the event that the Holder of the Class G Certificate is not an Affiliate of the Servicer, the Holder of the Class G Certificate shall make an advance to the Trust in the amount specified in such Advance Notice by depositing such amount into the Reserve Account. The Indenture Trustee shall cause such amount to be remitted from the Reserve Account to the Servicer on the following Payment Date. The Class Principal Balance of the Class G Certificates will be increased by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee amount of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinsuch Additional Balance Advance Amounts.
(c) [Reserved.]
(d) In connection with such transfer It is agreed and assignment of understood by the Mortgage LoansSeller, the Depositor does hereby deliver to, and deposit with, or cause the Issuing Entity (and the Depositor so represents and recognizes) that it is not intended that any Mortgage Loan to be delivered to and deposited with, included in the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
Trust Estate be (i) with respect to each Mortgage a "High-Cost Home Loan" as defined in the New Jersey Home Ownership Act effective November 27, the original Credit Line Agreement;
2003, (ii) for each Mortgage a "High-Cost Home Loan" as defined in the New Mexico Home Loan that is not Protection Act effective January 1, 2004, (iii) a MERS "High-Cost Home Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the Custodian, a true and correct copy of such Mortgage, together with (i) " as defined in the case of a delay caused by the public recording officeMassachusetts Predatory Home Loan Practices Act effective November 7, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official 2004 or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage "High Cost Home Loan, if applicable, the original Intervening Assignments, if any, with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) " as defined in the case of a delay caused by the public recording officeIndiana Home Loan Practices Act effective January 1, an Officer’s Certificate of the Depositor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer to the Indenture Trustee as pledgee of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages2005.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to (i) segregate (a) the Mortgage Files from documents and instruments relating to mortgage loans that are not Mortgage Loans and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days of such Recordation Event to submit to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the Securityholders.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Financial Asset Securities Corp)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Depositor, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with over and otherwise convey to the Issuer, Trust without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.02 and 3.04, in trust, 2.04) all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Asset Balance (including any all Additional Balances related theretoBalances) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Depositor's rights under the Purchase Agreement; (iv) the Depositor's rights under the hazard insurance policies; (iv) the Policy; , (v) the Collection Spread Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the InsurerCertificateholders; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Asset Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the NoteholdersInvestor Certificateholders. The Indenture foregoing transfer, assignment and conveyance to the Trust shall be made to the Trustee, on behalf of the Trust, and each reference in this Agreement to such transfer, assignment and conveyance shall be construed accordingly. The Depositor agrees to take or cause to be taken such actions and execute such documents (including without limitation the filing of all necessary continuation statements for the UCC-1 financing statements filed in the State of New York (which shall have been filed within 90 days of the Closing Date) describing the Cut-Off Date Asset Balances and Additional Balances and naming the Depositor as debtor and the Trustee declares thatas secured party and any amendments to UCC-1 financing statements required to reflect a change in the name or corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 90 days of any event necessitating such filing) as are necessary to perfect and protect the Certificateholders' and Credit Enhancer's interests in each Cut-Off Date Asset Balance and Additional Balances and the proceeds thereof (other than maintaining possession by the Trustee of the Mortgage Loans and the Mortgage Files, which possession will, subject to the review provided for in Section 2.02terms hereof, it has received be maintained by the Servicer as custodian and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use bailee of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust EstateTrustee).
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
(c) [Reserved.]
(d) In connection with such transfer and assignment of by the Mortgage LoansDepositor, the Depositor does hereby deliver to, Servicer acknowledges that it is holding as custodian and deposit with, or cause to be delivered to and deposited with, bailee for the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assigned:
(ithe "Related Documents") with respect to each Mortgage Loan, :
(i) the original Credit Line AgreementMortgage Note;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Seller, at the direction of the Depositor, shall deliver or cause to be delivered to the Custodian, as agent for the Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s officer's Certificate of the related Originator Seller stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iviii) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Depositor or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Seller stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(viv) for each Mortgage Loan either a title insurance policy or a title search or guaranty of title with respect to the related Mortgaged PropertyProperty to the extent in possession of the Seller or its Affiliates;
(viv) the original of any guaranty executed in connection with the Mortgage LoanNote;
(viivi) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage LoansLoan; and
(viiivii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage; and
(viii) within 90 days of a Document Preparation Trigger, the original Mortgage Note, endorsed in blank and an original Assignment of Mortgage endorsed in blank prepared in recordable form, in each case as required by Section 2.01(b). The parties hereto acknowledge provided, however, that as to any Mortgage Loan, if (a) as evidenced by an opinion of Counsel delivered to and agree that the in form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer and substance satisfactory to the Indenture Trustee as pledgee and the Credit Enhancer, (x) an optical image or other representation of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to related documents specified in clauses (i) segregate through (aviii) above are enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Files from documents and instruments relating Loan to mortgage loans that are not transfer its interest in such Mortgage Loans Loan, and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days retention of such Recordation Event to submit documents in such format will not result in a reduction in the then current rating of the Investor Certificates, without regard to the appropriate recording offices Assignments of Mortgage to the Indenture Trustee on behalf of the TrustPolicy, which such optical image or other representation may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(vii) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust Servicer, as custodian for the benefit Trustee or assignee in lieu of the Indenture physical documents specified above. [The Seller hereby confirms to the Trustee that it has caused the portions of the Electronic Ledgers relating to the Mortgage Loans to be clearly and the Securityholders.unambiguously marked, and
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Banc One Abs Corp)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing Date, in In consideration of the Issuer's ’s delivery to or upon the order of the Sponsor on the Closing Date of the net proceeds from the sale of the Notes and the Residual Certificates and the other amounts to be distributed from time to time to the Depositor or its designeeSponsor in accordance with the terms of this Agreement and the Indenture, and the Sponsor, concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfersells, assigntransfers, set overassigns, deposit with sets over and otherwise convey conveys to the Issuer, without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.03 and 3.04, in trust2.05), all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Balance (including any Additional Balances related thereto) and all collections in respect thereof received after the Cut-Off Date (excluding Interest Collections due on or prior to the Cut-Off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the SellerSponsor’s rights under the hazard insurance policies; (iv) the Policy; (v) the Collection Account and the Distribution Account; and (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the Insurer; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Property. On or prior to the Closing Date, the Depositor Sponsor shall cause the Insurer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares It is the intention of the Sponsor that the transfer and assignment contemplated by this Agreement shall constitute a sale of the Mortgage Loans and other Trust Property from the Sponsor to the Issuer and that such sale should constitute a valid transfer and assignment of the Mortgage Loans and other Trust Property to the Issuer and the beneficial interest in and title to the Mortgage Loans and the other Trust Property shall not be part of the Sponsor’s estate in the event of the filing of a bankruptcy petition by or against the Sponsor under any bankruptcy law. In the event that, subject notwithstanding the intent of the Sponsor, the transfer and assignment contemplated hereby is held not to be a sale, this Agreement shall constitute a grant of a security interest in the review provided for property referred to in this Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, 2.01 for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receiptNoteholders, the Issuer has issued Residual Certificateholders and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Insurer. Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Serviceroccurs, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] Balance is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s]Balance, the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related ServicerSponsor, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, to the extent that the Purchase Price of any Additional Balances Balance is greater than the cash consideration paid by the Issuer for such Additional Balance, the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a capital contribution made to the Issuer by the SellerSponsor. To the extent that the Seller Sponsor receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller Sponsor shall be deemed to have been redeemed. Concurrently with .
(b) Each of the execution Servicer and delivery of this Agreementthe Sponsor agrees to take or cause to be taken such actions and execute such documents (including, without limitation, the Depositor does hereby assign to filing of all necessary continuation statements for the UCC-1 financing statements filed in the States of California, Delaware and New York, respectively, which shall have been filed on or as of the Closing Date) describing the Cut-Off Date Principal Balances and Additional Balances and naming (i) in the case of the Cut-Off Date Principal Balances, (A) Terwin Advisors LLC as debtor and the Sponsor as secured party, (B) the Sponsor as debtor and the Issuer all as secured party and (ii) in the case of its rightsAdditional Balances, title and interest under (A) the Mortgage Loan Sale Agreement Servicer as debtor and the Transfer Agreements Sponsor as secured party, and (B) the Sponsor as debtor and the Transfer Agreements Issuer as secured party and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled any amendments to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership UCC-1 financing statements required to reflect a change in the Trust Estate shall be vested in name or corporate structure of the Issuer, subject the Servicer, Terwin Advisors LLC or the Sponsor or the filing of any additional UCC-1 financing statements due to the lien created by change in the Indenture in favor principal office of the Indenture TrusteeServicer, for the benefit Sponsor or Terwin Advisors LLC (within 10 days of any event necessitating such filing) as are necessary to perfect and protect the Securityholders Noteholders’ and the Insurer. The Issuer hereby accepts such assignment ’s interests in each Cut-Off Date Principal Balance and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement Additional Balance and the Transfer Agreements as if, for such purpose, it were the Depositor. The foregoing sale, transfer, assignment, set-over, deposit and conveyance does not and is not intended to result in creation or assumption proceeds thereof (other than maintaining possession by the Indenture Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth hereinand the Mortgage Files).
(c) [Reserved.]
(d) In connection with such transfer and assignment assignment, the Originator shall deliver to the Custodian on behalf of the Mortgage Loans, the Depositor does hereby deliver to, and deposit with, or cause to be delivered to and deposited with, the Indenture Trustee, and/or the applicable Custodian acting on the Indenture Trustee’s behalf, Trustee the following documents or instruments (each a “Related Document” and together for each Mortgage Loan, the “Mortgage File”) with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assignedon the Closing Date:
(i) with respect to each Mortgage Loan, the original Credit Line Agreement;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blank;
(iii) (A) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator shall deliver or cause to be delivered to the CustodianIndenture Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the related Originator stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any (“Intervening Assignments, if any”), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title with respect to the related Mortgaged Property;
(vi) the original of any guaranty executed in connection with the Mortgage Loan;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage Loans; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge and agree that the form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer Sponsor hereby confirms to the Indenture Trustee as pledgee that it has caused the portions of the IssuerElectronic Ledgers relating to the Mortgage Loans as of the Closing Date to be clearly and unambiguously marked, and has made, or will make, the appropriate entries in its general accounting records to indicate that such Mortgage Loans have been transferred to the Trust. The Servicer hereby confirms to the Indenture Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the Trust in accordance with the terms hereof.
(d) Notwithstanding the characterization of the Notes as debt for federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans to the Trust as provided herein as a sale, for the benefit of the Securityholderscertain non-tax purposes, of all the Credit Line Agreements Sponsor’s right, title and interest in and to the Mortgage Loans, whether now existing or hereafter created, and the Mortgagesother property described above and all proceeds thereof. In the event such transfer is deemed not to be a sale for such purposes, the Sponsor grants to the Trust, a security interest in all of such party’s right, title and interest in, to and under the Mortgage Loans, whether now existing or hereafter created, and the other property described above and all proceeds thereof; and this Agreement shall constitute a security agreement under applicable law.
(e) Upon Within 90 days following delivery of the occurrence Mortgage Files to the Custodian on behalf of a Recordation Eventthe Indenture Trustee pursuant to this Section, the Indenture Trustee shall cause the Custodian to (i) segregate (a) review on its behalf or the Indenture Trustee shall review each such Mortgage File to ascertain that all required documents set forth in this Section 2.01 have been executed and received, and that such documents relate to the Mortgage Files from documents Loans identified on the Mortgage Loan Schedule and instruments relating in so doing the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee may rely on the purported due execution and genuineness of any signature thereon. If within such 90-day period the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee finds any document constituting a part of a Mortgage File not to mortgage loans that are not have been executed or received or to be unrelated to the Mortgage Loans identified in said Mortgage Loan Schedule or, if in the course of its review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee determines that such Mortgage File is otherwise defective in any material respect, the Indenture Trustee shall promptly upon the conclusion of its review or the Custodian’s review on its behalf notify the Originator and the Insurer, and the Originator shall have a period of 90 days after such notice within which to correct or cure any such defect. Upon the completion of its 90-day review, the Custodian on behalf of the Indenture Trustee and/or the Indenture Trustee shall also notify the Insurer of any Mortgage File with respect to which it has been delivered any items other than the original recorded Mortgage with respect to Section 2.01(c)(iii). Neither the Custodian on behalf of the Indenture Trustee nor the Indenture Trustee shall have any responsibility for reviewing any Mortgage File except as expressly provided in this Section 2.01. In reviewing any Mortgage File pursuant to this Section, the Indenture Trustee and the Custodian on behalf of the Indenture Trustee shall have no responsibility for determining whether any document is valid and binding, whether the text of any assignment or endorsement is in proper or recordable form (b) except, if applicable, to determine if the Credit Line Agreement Indenture Trustee is the assignee or endorsee), whether any document has been recorded in accordance with the requirements of any applicable jurisdiction, or whether a blanket assignment is permitted in any applicable jurisdiction, whether any Person executing any document is authorized to do so or whether any signature thereon is genuine, but shall only be required to determine whether a document has been executed, that it appears to be what it purports to be, and, where applicable, that it purports to be recorded. Upon its actual knowledge or receipt of written notice from the Related Documents Insurer that a Recordation Event has occurred the Servicer shall take all necessary steps to prepare and submit for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare recordation an Assignment of Mortgage for each (or a blanket Assignment of Mortgage covering multiple Mortgage Loans if the same is permitted in any applicable jurisdiction).
(f) The Originator shall sell, assign, transfer, set over and otherwise convey without recourse to the Indenture Trustee all right, title and interest of the Originator in and to any Eligible Substitute Mortgage Loan delivered to the Indenture Trustee on behalf of the Trust by the Originator pursuant to Section 2.03 or Section 2.05 hereof and all its right, title and interest to principal collected and interest accruing on such Eligible Substitute Mortgage Loan on and after the applicable Substitute Cut-Off Date; provided, however, that the Originator shall reserve and retain all right, title and interest in and to payments of interest due on such Eligible Substitute Mortgage Loan prior to the applicable Substitute Cut-Off Date; provided, further, that neither the Trust nor the Indenture Trustee shall be obligated to fund any future advances to the related Mortgagor under such Eligible Substitute Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days In connection with any transfer and assignment of such Recordation Event to submit to the appropriate recording offices Assignments of an Eligible Substitute Mortgage Loan to the Indenture Trustee on behalf of the Trust, which may be blanket assignments if permitted by applicable law, for the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may Originator agrees to cause the Custodian to provide to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable to the Indenture Trustee and the Insurer, to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located is not necessary to protect the interests of the Owner Trustee, the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee shall cause the Custodian to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause (c)(viithe items described in Section 2.01(c) above and is not so delivered, on the Depositor will provide a copy date of such Title Insurance Policy to the Indenture Trusteetransfer and assignment or, or to the applicable Custodian on behalf of the Indenture Trusteeif a later delivery time is permitted by Section 2.01(c), as promptly as practicable after the execution and then no later than such later delivery hereof, but in any case within 180 days of the Closing Datetime.
(g) For Each Defective Mortgage Loans (if any) Loan that have been prepaid in full after the Cut off Date and prior is required to be repurchased or substituted pursuant to the Closing Dateprovisions this Agreement shall, upon such repurchase or substitution in accordance with the Depositorprovisions hereof, in lieu of delivering be released from the above documents, herewith delivers Trust and from the lien created by the Indenture. As to each Mortgage Loan released from the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, an Officer’s Certificate which shall include a statement to the effect that all amounts received Trust in connection with such prepayment that are required to be deposited in the Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to repurchase thereof or the conveyance of an Eligible Substitute Mortgage Loan therefor, the Indenture Trustee will transfer, assign, set over and otherwise convey without recourse, to or upon the applicable Custodian on behalf order of the Indenture Trustee shall be held by Originator, all of its right, title and interest in and to such released Mortgage Loan and all the Master Servicer or Trust’s right title and interest to principal collected and interest accruing on such released Mortgage Loan on and after the applicable Servicer in trust for the benefit first day of the Indenture Trustee calendar month in which such Mortgage Loan is released; provided, however, that the Trust shall reserve and the Securityholdersretain all right, title and interest in and to payments of principal and interest collected on such released Mortgage Loan prior to such date.
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Samples: Sale and Servicing Agreement (Greenpoint Mortgage Securities LLC)
Conveyance of Mortgage Loans; Retention of Obligation to Fund Advances Under Credit Line Agreements. (a) As of the Closing DateThe Depositor, in consideration of the Issuer's delivery of the Notes and the Residual Certificates to the Depositor or its designee, and concurrently with the execution and delivery of this Agreement, the Depositor does hereby transfer, assign, set over, deposit with over and otherwise convey to the Issuer, Trust without recourse, recourse (subject to Sections 2.02, 2.03, 3.03 2.02 and 3.04, in trust, 2.04) all the of its right, title and interest of the Depositor in and to the Mortgage Loans. Such conveyance includes, without limitation, (i) each Mortgage Loan, including its Principal Asset Balance (including any all Additional Balances related theretoBalances) and all collections in respect thereof received after the Cut-Off off Date (excluding Interest Collections payments in respect of accrued interest due on or prior to the Cut-Off off Date); (ii) property that secured a Mortgage Loan that is acquired by foreclosure or deed in lieu of foreclosure; (iii) the Seller’s Depositor's rights under the Purchase Agreement; (iv) the Depositor's rights under the hazard insurance policies; (iv) the Policy; (v) the Collection Account and the Distribution Account; (vi) any of the Depositor’s rights in relation to the Seller with respect to each Transfer Agreement and the Mortgage Loan Sale Agreement, including, but not limited to, the representations and warranties of each Transferor with respect to the related Mortgage Loans in the applicable Transfer Agreement and the representations and warranties of the Seller under the Mortgage Loan Sale Agreement; and (vii) any proceeds of the foregoing and any other Trust Property and all other assets included or to be included in the Issuer Trust for the benefit of Noteholders, the Residual Certificateholders and the InsurerCredit Enhancer; and (vi) all proceeds of the foregoing; provided, however, neither the Indenture Trustee nor the Issuer Trust assumes or shall assume the obligation under any Credit Line Agreement that provides for the funding of future advances to the Mortgagor thereunder, and neither the Issuer Trust nor the Indenture Trustee shall be obligated or permitted to fund any such future advances. With respect to the Mortgage Loans, Additional Balances shall be part of the related Principal Asset Balance and are hereby transferred to the Issuer Trust on the Closing Date pursuant to this Section 2.01(a)2.01, and therefore part of the Trust Propertyproperty. On In addition, on or prior to the Closing Date, the Depositor shall cause the Insurer Credit Enhancer to deliver the Policy to the Indenture Trustee for the benefit of the Noteholders. The Indenture Trustee declares that, subject to the review provided for in Section 2.02, it has received and shall hold the Trust Estate, as Indenture Trustee, in trust, for the benefit and use of the Securityholders and for the purposes and subject to the terms and conditions set forth in this Agreement, and, concurrently with such receipt, the Issuer has issued and delivered the Securities to or upon the order of the Depositor, in exchange for the Trust Estate.
(b) Prior to the last day of the related Collection Period preceding the month in which the commencement of the Rapid Amortization Period occurs with respect to the Mortgage Loans serviced by each Servicer, to the extent that the related [aggregate] Purchase Price of any [all] Additional Balance[s] is [are] greater than the cash consideration paid by the Issuer for such Additional Balance[s], the difference between such Purchase Price and the amount of such cash consideration shall be deemed to be a loan made to the Issuer by the related Servicer, which shall accrue interest and be payable according to the terms of the Indenture. On and after the first day of the Collection Period in which the commencement of the Rapid Amortization Period occurs, Additional Balances shall be deemed to be a capital contribution made to the Issuer by the Seller. To the extent that the Seller receives cash consideration for the entire Purchase Price of such Additional Balance on any future date, any corresponding capital contribution that had previously been deemed to have been made to the Issuer by the Seller shall be deemed to have been redeemed. Concurrently with the execution and delivery of this Agreement, the Depositor does hereby assign to the Issuer all of its rights, title and interest under the Mortgage Loan Sale Agreement and the Transfer Agreements and the Transfer Agreements and delegates its obligations thereunder. The Issuer hereby accepts such assignment, and shall be entitled to exercise all the rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the Depositor. Upon the issuance of the Securities, ownership in the Trust Estate shall be vested in the Issuer, subject to the lien created by the Indenture in favor of the Indenture Trustee, for the benefit of the Securityholders and the Insurer. The Issuer hereby accepts such assignment and delegation, and shall be entitled to exercise all rights of the Depositor under the Mortgage Loan Sale Agreement and the Transfer Agreements as if, for such purpose, it were the DepositorInvestor Certificateholders. The foregoing sale, transfer, assignment, set-over, deposit over and conveyance does not and is not intended to result in creation or assumption by the Indenture Trustee of any obligation Trust shall be made to the Trustee, on behalf of the DepositorTrust, the Sellerand each reference in this Agreement to such transfer, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto except as specifically set forth herein.
assignment, set-over and conveyance shall be construed accordingly. The Depositor agrees (subject to paragraph (c) [Reserved.]
below) to take or cause to be taken such actions and execute such documents, including without limitation, the filing of all necessary continuation statements for the UCC-1 financing statements filed in the State of California (dwhich shall have been filed within 90 days of the Closing Date) describing the Cut-off Date Asset Balances and Additional Balances and naming the Depositor as debtor and the Trustee as secured party and any amendments to UCC-1 financing statements required to reflect a change in the name or corporate structure of the Depositor or the filing of any additional UCC-1 financing statements due to the change in the principal office of the Depositor (within 90 days of any event necessitating such filing) as are necessary to perfect and protect the Certificateholders' and Credit Enhancer's interests in each Cut-off Date Asset Balance and Additional Balances and the proceeds thereof. In connection with such transfer and assignment of by the Mortgage LoansDepositor, the Depositor does hereby shall deliver to, and deposit with, or cause the Sponsor to be delivered deliver to and deposited with, the Indenture Trustee, and/or Trustee within thirty (30) days following the applicable Custodian acting on the Indenture Trustee’s behalf, Closing Date the following documents or instruments with respect to each Mortgage Loan (each a “Mortgage File”) so transferred and assignedLoan:
(i) with respect to each Mortgage Loan, the original Credit Line AgreementMortgage Note endorsed in blank;
(ii) for each Mortgage Loan that is not a MERS Mortgage Loan, an unsigned and un-notarized but otherwise complete original Assignment of Mortgage in blankblank in recordable form;
(Aiii) for each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded Mortgage or, if if, in connection with any Mortgage Loan, the original recorded Mortgage with evidence of recording thereon cannot be delivered on or prior to the Closing Date because of a delay caused by the public recording office where such original Mortgage has been delivered for recordation or because such original Mortgage has been lost, the Originator Sponsor, at the direction of the Depositor, shall deliver or cause to be delivered to the Custodian, as agent for the Trustee, a true and correct copy of such Mortgage, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the related Originator Depositor stating that such original Mortgage has been dispatched to the appropriate public recording official or (ii) in the case of an original Mortgage that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded, and (B) in the case of each MERS Mortgage Loan, the original Mortgage, noting the presence of the “Mortgage Identification Number” of such MERS Mortgage Loan;
(iv) for each Mortgage Loan that is not a MERS Mortgage Loan, if applicable, the original intervening assignments, if any ("Intervening Assignments, if any"), with evidence of recording thereon, showing a complete chain of title to the Mortgage from the borrower originator to the related Originator (and endorsed in blank in accordance with clause (ii) above) Depositor or, if any such original Intervening Assignment has not been returned from the applicable recording office or has been lost, a true and correct copy thereof, together with (i) in the case of a delay caused by the public recording office, an Officer’s 's Certificate of the Depositor Sponsor stating that such original Intervening Assignment has been dispatched to the appropriate public recording official for recordation or (ii) in the case of an original Intervening Assignment that has been lost, a certificate by the appropriate county recording office where such Mortgage is recorded;
(v) either a title policy or guaranty title for each Mortgage Loan with respect to the related Mortgaged Propertya Credit Limit in excess of $100,000;
(vi) the original of any guaranty executed in connection with the Mortgage LoanNote;
(vii) the original of each assumption, modification, consolidation or substitution agreement, if any, relating to the Mortgage LoansLoan; and
(viii) any security agreement, chattel mortgage or equivalent instrument executed in connection with the Mortgage. The parties hereto acknowledge ; provided, however, that as to any Mortgage Loan, if (a) as evidenced by an Opinion of Counsel delivered to and agree that the in form of endorsement attached hereto as Exhibit A-4 is intended to effect the transfer and substance satisfactory to the Indenture Trustee as pledgee and the Credit Enhancer, (x) an optical image or other representation of the Issuer, for the benefit of the Securityholders, of the Credit Line Agreements and the Mortgages.
(e) Upon the occurrence of a Recordation Event, the Indenture Trustee shall cause the Custodian to related documents specified in clauses (i) segregate through (avii) above are enforceable in the relevant jurisdictions to the same extent as the original of such document and (y) such optical image or other representation does not impair the ability of an owner of such Mortgage Files from documents and instruments relating Loan to mortgage loans that are not transfer its interest in such Mortgage Loans Loan, and (b) the Credit Line Agreement from the Related Documents for each Mortgage Loan and shall assemble and maintain the Credit Line Agreements together (separate from the Related Documents) and (ii) prepare an Assignment of Mortgage for each Mortgage Loan. Indenture Trustee shall cause the Custodian within 90 days retention of such Recordation Event to submit documents in such format will not result in a reduction in the then current rating of the Investor Certificates, without regard to the appropriate recording offices Assignments Policy, such optical image or other representation may be held by the Trustee or assignee in lieu of Mortgage the physical documents specified above. The Sponsor hereby confirms to the Indenture Trustee that it has caused the portions of the Electronic Ledgers relating to the Mortgage Loans to be clearly and unambiguously marked, and has made the appropriate entries in its general accounting records, to indicate that such Mortgage Loans have been transferred to the Trust at the direction of the Depositor. The Master Servicer hereby confirms to the Trustee that it has clearly and unambiguously made appropriate entries in its general accounting records indicating that such Mortgage Loans constitute part of the Trust and are serviced by it on behalf of the TrustTrust in accordance with the terms hereof. Notwithstanding the characterization of the Investor Certificates as debt for Federal, state and local income and franchise tax purposes, the parties hereto intend to treat the transfer of the Mortgage Loans as provided herein as a sale for accounting and other purposes, by the Depositor to the Trust of all the Depositor's right, title and interest in and to the Mortgage Loans and other property described above. In the event such transfer is deemed not to be a sale as contemplated in the immediately preceding sentence, the Depositor hereby grants to the Trust a security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans whether now existing or hereafter created, all monies due or to become due on the Mortgage Loans and all proceeds of any thereof; and this Agreement shall constitute a security agreement under applicable law.
(b) In the event that neither the Depositor nor the Sponsor delivers the Mortgage File for any Mortgage Loan to the Trustee as and when required pursuant to paragraph (a) of this Section 2.01, such Mortgage Loan shall be deemed to be retransferred, reassigned and otherwise reconveyed to the Sponsor, subject to the conditions set forth in Section 2.02(b) (as if such Mortgage Loan were otherwise subject to the provisions thereof). In the event of a Transfer Deficiency, the Sponsor, within five (5) Business Days of notification thereof by the Trustee, shall substitute an Eligible Substitute Mortgage Loan for the related Mortgage Loan or, if unable to effect such substitution, deposit into the Collection Account the Transfer Deposit Amount in immediately available funds equal to the Transfer Deficiency (or a combination of substitution and deposit). Any such substitution or deposit shall be accomplished in the manner specified in, and have the effect set forth in, Section 2.02(b) (as if the related Mortgage Loan were otherwise subject to the provisions thereof).
(c) Should the long term senior unsecured corporate debt rating of Countrywide Home Loans, Inc. fall below "BBB" by Standard & Poor's or "Baa2" by Xxxxx'x, as promptly as practicable but in no event more than 90 days following the occurrence of such event, the Master Servicer shall, at its expense, (i) either (x) request that the Trustee deliver to it the original Assignment of Mortgage previously delivered to the Trustee pursuant to paragraph (v)(ii) of this Section 2.01 and thereupon record such Assignment of Mortgage in favor of the Trustee (which may be a blanket assignments assignment if permitted by applicable law, for ) in the Mortgage Loans. In lieu of recording any such Assignments of Mortgage, Master Servicer may cause the Custodian to provide appropriate real property or other records or (y) deliver to the Indenture Trustee and the Insurer, an Opinion of Counsel in a form reasonably acceptable addressed to the Indenture Trustee and the Insurer, Credit Enhancer to the effect that recordation of an Assignment of Mortgage in the state where the related Mortgaged Property is located recording is not necessary required to protect the interests Trustee's right, title and interest in and to the related Mortgage Loan or, in case a court should recharacterize the sale of the Owner TrusteeMortgage Loans as a financing, to perfect a first priority security interest in favor of the Indenture Trustee or the Noteholders in the related Mortgage. In the event that any such Assignment Mortgage Loan, which Opinion of Mortgage is lost or returned unrecorded because of a defect therein, the Indenture Trustee Counsel also shall cause the Custodian be reasonably acceptable to promptly prepare a substitute Assignment of Mortgage or cure such defect, as the case may be, and thereafter the Indenture Trustee shall cause the Custodian to submit each such Assignment of Mortgage for recording.
(f) In instances where a Title Insurance Policy is required to be delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee under clause Rating Agencies (c)(viias evidenced in writing) above and is not so delivered, the Depositor will provide a copy of such Title Insurance Policy to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture Trustee, as promptly as practicable after the execution and delivery hereof, but in any case within 180 days of the Closing Date.
(g) For Mortgage Loans (if any) that have been prepaid in full after the Cut off Date and prior to the Closing Date, the Depositor, in lieu of delivering the above documents, herewith delivers to the Indenture Trustee, or to the applicable Custodian on behalf of the Indenture 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 Collection Account pursuant to Section 4.07(d) have been so deposited. All original documents that are not delivered to the Indenture Trustee or the applicable Custodian on behalf of the Indenture Trustee shall be held by the Master Servicer or the applicable Servicer in trust for the benefit of the Indenture Trustee and the SecurityholdersCredit Enhancer.
Appears in 1 contract
