Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law. (b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan: (i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note; (ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form); (iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form); (iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon; (v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any; (vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and (vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 4 contracts
Samples: Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-2, Mortgage-Backed Notes, Series 2005-2), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-3, Mortgage-Backed Notes, Series 2005-3), Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-4, Mortgage-Backed Notes, Series 2005-4)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to each of the PWS Agreement and the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “"Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (MortgageIT Trust 2004-1)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor Depositor, concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Custodial Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the rights with respect to the Mortgage Loan Purchase Agreement to the extent provided in Subsection Section 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. It is not the intent of any party to this Agreement to include in the Trust Estate any Mortgage Loan made or existing in violation of any predatory or anti-abusive lending laws. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first first-priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, Estate and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor Depositor, or the Seller on its behalf, hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse in blank or recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee and relating to People’s Choice Home Loan Securities Trust Series 2005-3, Mortgage-Backed Notes, Series 2005-3”, with any intervening endorsements showing an unbroken chain of endorsements title from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or with respect to a Mortgage Loan as to which the Mortgage Note has been lost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note. If, however, such Mortgage Note, including any riders thereto, are delivered endorsed in blank, then the Custodian may stamp such notes in accordance with Section 2.3(a) of the Custodial Agreement;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy)Mortgage, with evidence of such recording indicated thereon (thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if clause (w) in such original Mortgage has been lost, the proviso below appliesSeller shall include or cause to be included a copy thereof certified by the appropriate recording office, shall be in recordable form)if available;
(iii) unless an original duly executed Assignment of the Mortgage Loan is a MOM Loanin recordable form from the Seller or the originator, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or as applicable, to “Deutsche HSBC Bank USA, National Trust CompanyAssociation, as Indenture TrusteeTrustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-3, on behalf Mortgage-Backed Notes, Series 2005-3.” If, however, such Assignment is delivered endorsed in blank, then the Custodian may stamp such assignment in accordance with Section 2.3(a) of the Noteholders”Custodial Agreement;
(iv) the original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage Loan in from the name of originator thereof to Person assigning it to the Indenture Trustee thereon (or Trustee; provided that if clause (w) in such document is not included because of a delay by the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel public recording office where such document has been provided delivered for recordation or such office as set forth in this Section 2.01(b)a matter of policy does not return the original of such document, the Seller shall include or cause to be in recordable form);
(iv) all intervening assignments of included a copy thereof certified by the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable;
(v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any;
(vi) Mortgaged Property with the original or a copy policy of the policy insurance to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any Assignment of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and availableMortgage; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case Assignment of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such for each Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment Loan shall be submitted for recording by the Seller in the manner described aboveSeller, at no expense to the Issuer Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating evidencing at least 25% of the Note Principal Balance of the NotesBalance, (ii) the occurrence of a Master Servicer Event of Default or an Event of DefaultDefault under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, of this Agreement and (v) if the Seller fails or an affiliate of the Seller is not the Servicer or the Subservicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to pay the cost Mortgagor under the related Mortgage (in which case only the Assignment of recording the assignments, such expense will Mortgage for that particular Mortgage must be paid recorded). Upon discovery by the Securities Administrator from funds Seller that recording of the assignments is required pursuant to one or more of the conditions set forth in the Payment Account preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states which are not covered by the Opinion of Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 4.05 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this Agreementsection. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect or (ii) substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 2.04 hereof for substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of the Indenture Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.01. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.01, other than with respect to servicing rights with respect to the Mortgage Loans.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2005-3)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor Depositor, concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal and Prepayment Charges due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Custodial Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the rights with respect to the Mortgage Loan Purchase Agreement to the extent provided in Subsection Section 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. It is not the intent of any party to this Agreement to include in the Trust Estate any Mortgage Loan made or existing in violation of any predatory or anti-abusive lending laws. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first first-priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, Estate and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor Depositor, or the Seller on its behalf, hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse in blank or recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee and relating to People’s Financial Realty Mortgage Securities Trust, Series [ ], Mortgage-Backed Notes, Series [ ]”, with any intervening endorsements showing an unbroken chain of endorsements title from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or with respect to a Mortgage Loan as to which the Mortgage Note has been lost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note. If, however, such Mortgage Note, including any riders thereto, are delivered endorsed in blank, then the Custodian may stamp such notes in accordance with Section 2.3(a) of the Custodial Agreement;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy)Mortgage, with evidence of such recording indicated thereon (thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if clause (w) in such original Mortgage has been lost, the proviso below appliesSeller shall include or cause to be included a copy thereof certified by the appropriate recording office, shall be in recordable form)if available;
(iii) unless an original duly executed Assignment of the Mortgage Loan is a MOM Loanin recordable form from the Seller or the originator, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or as applicable, to “Deutsche Bank National Trust Company[ ], as Indenture TrusteeTrustee under the Indenture relating to People’s Financial Realty Mortgage Securities Trust, on behalf Series [ ], Mortgage-Backed Notes, [ ].” If, however, such Assignment is delivered endorsed in blank, then the Custodian may stamp such assignment in accordance with Section 2.3(a) of the Noteholders”Custodial Agreement;
(iv) the original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage Loan in from the name of originator thereof to Person assigning it to the Indenture Trustee thereon (or Trustee; provided that if clause (w) in such document is not included because of a delay by the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel public recording office where such document has been provided delivered for recordation or such office as set forth in this Section 2.01(b)a matter of policy does not return the original of such document, the Seller shall include or cause to be in recordable form);
(iv) all intervening assignments of included a copy thereof certified by the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable;
(v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any;
(vi) Mortgaged Property with the original or a copy policy of the policy insurance to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any Assignment of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and availableMortgage; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case Assignment of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such for each Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment Loan shall be submitted for recording by the Seller in the manner described aboveSeller, at no expense to the Issuer Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating evidencing at least 25% of the Note Principal Balance of the NotesBalance, (ii) the occurrence of a Master Servicer Event of Default or an Event of DefaultDefault under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, of this Agreement and (v) if the Seller fails or an affiliate of the Seller is not the Servicer or the Subservicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to pay the cost Mortgagor under the related Mortgage (in which case only the Assignment of recording the assignments, such expense will Mortgage for that particular Mortgage must be paid recorded). Upon discovery by the Securities Administrator from funds Seller that recording of the assignments is required pursuant to one or more of the conditions set forth in the Payment Account preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states which are not covered by the Opinion of Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 4.05 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee (or the Custodian, on behalf of the Indenture Trustee) of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this Agreementsection. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect or (ii) substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 2.04 hereof for substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of the Indenture Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.01. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.01, other than with respect to servicing rights with respect to the Mortgage Loans.
(c) The Depositor, the Seller and the Indenture Trustee agree that it is not intended that any Mortgage Loan be conveyed to the Trust that is either (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 by the Indiana High Cost Home Loan Law effective [ ].
Appears in 1 contract
Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Corp)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor Depositor, concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Custodial Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the rights with respect to the Mortgage Loan Purchase Agreement to the extent provided in Subsection Section 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor Depositor, or the Seller on its behalf, hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse in blank or recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee and relating to People’s Choice Home Loan Securities Trust Series 2005-2, Mortgage-Backed Notes, Series 2005-2”, with any intervening endorsements showing an unbroken chain of endorsements title from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or with respect to a Mortgage Loan as to which the Mortgage Note has been lost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note. If, however, such Mortgage Note, including any riders thereto, are delivered endorsed in blank, then the Custodian may stamp such notes in accordance with Section 2.3(a) of the Custodial Agreement;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy)Mortgage, with evidence of such recording indicated thereon (thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if clause (w) in such original Mortgage has been lost, the proviso below appliesSeller shall include or cause to be included a copy thereof certified by the appropriate recording office, shall be in recordable form)if available;
(iii) unless an original duly executed Assignment of the Mortgage Loan is a MOM Loanin recordable form from the Seller or the originator, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or as applicable, to “Deutsche HSBC Bank USA, National Trust CompanyAssociation, as Indenture TrusteeTrustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-2, on behalf Mortgage-Backed Notes, Series 2005-2.” If, however, such Assignment is delivered endorsed in blank, then the Custodian may stamp such assignment in accordance with Section 2.3(a) of the Noteholders”Custodial Agreement;
(iv) the original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage Loan in from the name of originator thereof to Person assigning it to the Indenture Trustee thereon (or Trustee; provided, that if clause (w) in such document is not included because of a delay by the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel public recording office where such document has been provided delivered for recordation or such office as set forth in this Section 2.01(b)a matter of policy does not return the original of such document, the Seller shall include or cause to be in recordable form);
(iv) all intervening assignments of included a copy thereof certified by the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable;
(v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any;
(vi) Mortgaged Property with the original or a copy policy of the policy insurance to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any Assignment of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and availableMortgage; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case Assignment of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such for each Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment Loan shall be submitted for recording by the Seller in the manner described aboveSeller, at no expense to the Issuer Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating evidencing at least 25% of the Note Principal Balance of the NotesBalance, (ii) the occurrence of a Master Servicer Event of Default or an Event of DefaultDefault under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, of this Agreement and (v) if the Seller fails or an affiliate of the Seller is not the Servicer or the Subservicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to pay the cost Mortgagor under the related Mortgage (in which case only the Assignment of recording the assignments, such expense will Mortgage for that particular Mortgage must be paid recorded). Upon discovery by the Securities Administrator from funds Seller that recording of the assignments is required pursuant to one or more of the conditions set forth in the Payment Account preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states which are not covered by the Opinion of Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 4.05 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this Agreementsection. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect or (ii) substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 2.04 hereof for substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of the Indenture Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.01. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.01, other than with respect to servicing rights with respect to the Mortgage Loans.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2005-2)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “"Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; providedPROVIDED, howeverHOWEVER, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Mortgageit Trust 2004-2, Mortgage-Backed Notes, Series 2004-2)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in and the Mortgage Loan Schedule, including proceeds thereof and all interest and principal due with respect to rights under the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off DateRelated Documents; (ii) such assets as shall all funds on deposit from time to time be credited or are required by in the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, excluding any investment income from such funds; (iii) such assets relating to the Mortgage Loans as all funds on deposit from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, Account and in all proceeds thereof; (iv) any REO Property; (v) all rights under (I) the Mortgage Loan Purchase Agreement as assigned to the Issuer to the extent provided in Section 2.03(a), (vII) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Servicing Agreement Agreements, each as assigned to the Issuer by the related Assignment Agreement; and (viiivi) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above such transfer and assignmentassignment of the Mortgage Loans, the Depositor hereby delivers shall deliver to, and deposit with, or cause to be delivered to and deposited with, the Custodian, on behalf of the Issuer, the following documents or instruments with respect to each Mortgage LoanLoan so transferred and assigned:
(i) The original Mortgage Note endorsed, “Pay to the order of ___________, without recourse” and signed in the name of the name of last endorsee, by an authorized officer of the last endorsee. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the endorsement must be by “[name of last endorsee], successor [by merger to or in interest to, as applicable] [name of predecessor]” and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by “[name of last endorsee], successor in interest to [previous name].” The Mortgage Note shall include all intervening endorsements showing a complete chain of title from the originator to the last endorsee. A lost note affidavit (including a copy of the original Mortgage Note, endorsed without recourse ) may be delivered in blank or to the order lieu of the Indenture Trustee and showing an unbroken chain original Mortgage Note.
(ii) The original recorded Mortgage, with evidence of endorsements recording thereon, or, if the original Mortgage has not yet been returned from the originator thereof to the Person endorsing it in blank or to the Indenture Trusteerecording office, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if certified by the related Mortgage Loan is previous owner to be a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified true copy of the assignment (original of the Mortgage which may be has been delivered for recording in the form appropriate recording office of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located.
(iii) The original Assignment of Mortgage, executed in blank by either MLML or its Servicer. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the assignment must be by “[name of last assignee], successor [by merger to “Deutsche Bank National Trust Companyor in interest to, as Indenture Trusteeapplicable] [name of predecessor]” and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, on behalf the assignment must be by “[name of last assignee], successor in interest to [previous name].”
(iv) The original policy of title insurance (or a preliminary title report if the original title insurance policy has not been received from the title insurance company).
(v) Originals of any intervening assignments of the Noteholders”Mortgage, with evidence of recording with respect thereon or, if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified by the Seller to each Mortgage Loan be a true copy of the original of the assignment which has been delivered for recording in the name appropriate recording office of the Indenture Trustee thereon (or if clause (w) jurisdiction in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);located.
(ivvi) all intervening assignments of the Security InstrumentWith respect to a Mortgage Loan that, if applicable and only according to the extent available to the Depositor with evidence of recording thereon;
(v) Mortgage Loan Schedule is covered by a primary mortgage insurance policy, the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent availableinsurance certificate, if any.
(vii) If indicated on the Mortgage Loan Schedule, originals of all assumption and modification agreements, if any, with originals or copies of the underlying instruments being modified.
(viii) With respect to each Additional Collateral Mortgage Loan,
(A) copy of the related Mortgage 100 Pledge Agreement for Securities Account or the Parent Power Guaranty and Security Agreement for Securities Account or the Parent Power Guaranty Agreement for Real Estate, as the case may be;
(viB) copy of the UCC-1 (applicable for South Carolina and Rhode Island only);
(C) an original form UCC-3, if applicable;
(D) for loans originated by a correspondent lender, an original assignment of security interest of the related Mortgage 100 Pledge Agreement or Parent Power Agreement, as the case may be.
(ix) With respect to each Cooperative Loan:
(A) the original proprietary lease;
(B) the original recognition agreement;
(C) the original security agreement;
(D) the original or a copy of the policy assignment of title insurance or mortgagee’s proprietary lease;
(E) the original cooperative stock certificate of title insurance or commitment or binder for title insuranceand stock power executed by borrower in blank;
(F) the original UCC-1 Financing Statements;
(G) the original UCC-3 Financing Statements; and
(viix) originals Power of all modification agreementsAttorney, if applicable and available; applicable. provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the related Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related Servicer and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-2)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in and the Mortgage Loan Schedule, including proceeds thereof and all interest and principal due with respect to rights under the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off DateRelated Documents; (ii) such assets as shall all funds on deposit from time to time be credited or are required by in the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, excluding any investment income from such funds; (iii) such assets relating to the Mortgage Loans as all funds on deposit from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, Account and in all proceeds thereof; (iv) any REO Property; (v) all rights under (I) the Mortgage Loan Purchase Agreement as assigned to the Issuer to the extent provided in Section 2.03(a), (vII) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Servicing Agreement Agreements, each as assigned to the Issuer by the related Assignment Agreement; and (viiivi) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above such transfer and assignmentassignment of the Mortgage Loans, the Depositor hereby delivers shall deliver to, and deposit with, or cause to be delivered to and deposited with, the Custodian, on behalf of the Issuer, the following documents or instruments with respect to each Mortgage LoanLoan so transferred and assigned:
(i) The original Mortgage Note endorsed, "Pay to the order of ___________, without recourse" and signed in the name of the name of last endorsee, by an authorized officer of the last endorsee. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the endorsement must be by "[name of last endorsee], successor [by merger to or in interest to, as applicable] [name of predecessor]"; and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by "[name of last endorsee], successor in interest to [previous name]." The Mortgage Note shall include all intervening endorsements showing a complete chain of title from the originator to the last endorsee. A lost note affidavit (including a copy of the original Mortgage Note, endorsed without recourse ) may be delivered in blank or to the order lieu of the Indenture Trustee and showing an unbroken chain original Mortgage Note.
(ii) The original recorded Mortgage, with evidence of endorsements recording thereon, or, if the original Mortgage has not yet been returned from the originator thereof to the Person endorsing it in blank or to the Indenture Trusteerecording office, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if certified by the related Mortgage Loan is previous owner to be a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified true copy of the assignment (original of the Mortgage which may be has been delivered for recording in the form appropriate recording office of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located.
(iii) The original Assignment of Mortgage, executed in blank by either MLML or its Servicer. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the assignment must be by "[name of last assignee], successor [by merger to “Deutsche Bank National Trust Companyor in interest to, as Indenture Trusteeapplicable] [name of predecessor]"; and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, on behalf the assignment must be by "[name of last assignee], successor in interest to [previous name]."
(iv) The original policy of title insurance (or a preliminary title report if the original title insurance policy has not been received from the title insurance company).
(v) Originals of any intervening assignments of the Noteholders”Mortgage, with evidence of recording with respect thereon or, if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified by the Seller to each Mortgage Loan be a true copy of the original of the assignment which has been delivered for recording in the name appropriate recording office of the Indenture Trustee thereon (or if clause (w) jurisdiction in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);located.
(ivvi) all intervening assignments of the Security InstrumentWith respect to a Mortgage Loan that, if applicable and only according to the extent available to the Depositor with evidence of recording thereon;
(v) Mortgage Loan Schedule is covered by a primary mortgage insurance policy, the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent availableinsurance certificate, if any.
(vii) If indicated on the Mortgage Loan Schedule, originals of all assumption and modification agreements, if any, with originals or copies of the underlying instruments being modified.
(viii) With respect to each Additional Collateral Mortgage Loan,
(A) copy of the related Mortgage 100 Pledge Agreement for Securities Account or the Parent Power Guaranty and Security Agreement for Securities Account or the Parent Power Guaranty Agreement for Real Estate, as the case may be;
(viB) copy of the UCC-1 (applicable for South Carolina and Rhode Island only);
(C) an original form UCC-3, if applicable;
(D) for loans originated by a correspondent lender, an original assignment of security interest of the related Mortgage 100 Pledge Agreement or Parent Power Agreement, as the case may be.
(ix) With respect to each Cooperative Loan:
(A) the original proprietary lease;
(B) the original recognition agreement;
(C) the original security agreement;
(D) the original or a copy of the policy assignment of title insurance or mortgagee’s proprietary lease;
(E) the original cooperative stock certificate of title insurance or commitment or binder for title insuranceand stock power executed by borrower in blank;
(F) the original UCC-1 Financing Statements;
(G) the original UCC-3 Financing Statements; and
(viix) originals Power of all modification agreementsAttorney, if applicable and available; applicable. provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the related Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related Servicer and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Merrill Lynch Mortgage Investors Trust, Series 2005-2)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “"Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (MORTGAGEIT TRUST 2005-1, Mortgage-Backed Notes, Series 2005-1)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor Depositor, concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal and Prepayment Charges due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Custodial Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the rights with respect to the Mortgage Loan Purchase Agreement to the extent provided in Subsection Section 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. It is not the intent of any party to this Agreement to include in the Trust Estate any Mortgage Loan made or existing in violation of any predatory or anti-abusive lending laws. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first first-priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, Estate and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor Depositor, or the Seller on its behalf, hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse in blank or recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee and relating to People’s Choice Home Loan Securities Trust Series 2005-4, Mortgage-Backed Notes, Series 2005-4”, with any intervening endorsements showing an unbroken chain of endorsements title from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or with respect to a Mortgage Loan as to which the Mortgage Note has been lost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note. If, however, such Mortgage Note, including any riders thereto, are delivered endorsed in blank, then the Custodian may stamp such notes in accordance with Section 2.3(a) of the Custodial Agreement;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy)Mortgage, with evidence of such recording indicated thereon (thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if clause (w) in such original Mortgage has been lost, the proviso below appliesSeller shall include or cause to be included a copy thereof certified by the appropriate recording office, shall be in recordable form)if available;
(iii) unless an original duly executed Assignment of the Mortgage Loan is a MOM Loanin recordable form from the Seller or the originator, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or as applicable, to “Deutsche HSBC Bank USA, National Trust CompanyAssociation, as Indenture TrusteeTrustee under the Indenture relating to People’s Choice Home Loan Securities Trust Series 2005-4, on behalf Mortgage-Backed Notes, Series 2005-4.” If, however, such Assignment is delivered endorsed in blank, then the Custodian may stamp such assignment in accordance with Section 2.3(a) of the Noteholders”Custodial Agreement;
(iv) the original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage Loan in from the name of originator thereof to Person assigning it to the Indenture Trustee thereon (or Trustee; provided that if clause (w) in such document is not included because of a delay by the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel public recording office where such document has been provided delivered for recordation or such office as set forth in this Section 2.01(b)a matter of policy does not return the original of such document, the Seller shall include or cause to be in recordable form);
(iv) all intervening assignments of included a copy thereof certified by the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable;
(v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any;
(vi) Mortgaged Property with the original or a copy policy of the policy insurance to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any Assignment of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and availableMortgage; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case Assignment of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such for each Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment Loan shall be submitted for recording by the Seller in the manner described aboveSeller, at no expense to the Issuer Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating evidencing at least 25% of the Note Principal Balance of the NotesBalance, (ii) the occurrence of a Master Servicer Event of Default or an Event of DefaultDefault under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, of this Agreement and (v) if the Seller fails or an affiliate of the Seller is not the Servicer or the Subservicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to pay the cost Mortgagor under the related Mortgage (in which case only the Assignment of recording the assignments, such expense will Mortgage for that particular Mortgage must be paid recorded). Upon discovery by the Securities Administrator from funds Seller that recording of the assignments is required pursuant to one or more of the conditions set forth in the Payment Account preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states which are not covered by the Opinion of Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 4.05 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee (or the Custodian, on behalf of the Indenture Trustee) of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this Agreementsection. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect or (ii) substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 2.04 hereof for substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of the Indenture Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.01. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.01, other than with respect to servicing rights with respect to the Mortgage Loans.
(c) The Depositor, the Seller and the Indenture Trustee agree that it is not intended that any Mortgage Loan be conveyed to the Trust that is either (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 by the Indiana High Cost Home Loan Law effective Jan 1, 2005.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Trust Series 2005-4)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account, the Master Servicer in the Master Servicer Collection Account and the Securities Administrator Indenture Trustee in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT HomeBanc Servicing Agreement as assigned to the Issuer by the Assignment Agreement, (viii) the Corridor Contracts and (viiiix) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in Indenture Trustee and the Payment Account Indenture Trustee shall be reimbursed for such expenses by the Trust Estate in accordance with Section 4.05 6.07 of this Agreementthe Indenture.
Appears in 1 contract
Conveyance of Mortgage Loans to Issuer. (a) The Depositor Depositor, concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal and Prepayment Charges due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Custodial Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the rights with respect to the Mortgage Loan Purchase Agreement to the extent provided in Subsection Section 2.03(a), (vii) the rights with respect to the MortgageIT Servicing Agreement and (viii) any proceeds of the foregoing. It is not the intent of any party to this Agreement to include in the Trust Estate any Mortgage Loan made or existing in violation of any predatory or anti-abusive lending laws. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first first-priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, Estate and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor Depositor, or the Seller on its behalf, hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, including any riders thereto, endorsed by the Seller or the originator, as applicable, without recourse in blank or recourse, to the order of “HSBC Bank USA, National Association, as Indenture Trustee under the Indenture Trustee and relating to People’s Financial Realty Mortgage Securities Trust, Series [ ], Mortgage-Backed Notes, Series [ ]”, with any intervening endorsements showing an unbroken chain of endorsements title from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or with respect to a Mortgage Loan as to which the Mortgage Note has been lost, a lost note affidavit together with indemnity and, if available, a copy of the related lost Mortgage Note. If, however, such Mortgage Note, including any riders thereto, are delivered endorsed in blank, then the Custodian may stamp such notes in accordance with Section 2.3(a) of the Custodial Agreement;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy)Mortgage, with evidence of such recording indicated thereon (thereon; provided that if such document is not included because of a delay by the public recording office where such document has been delivered for recordation or such office as a matter of policy does not return the original of such document or if clause (w) in such original Mortgage has been lost, the proviso below appliesSeller shall include or cause to be included a copy thereof certified by the appropriate recording office, shall be in recordable form)if available;
(iii) unless an original duly executed Assignment of the Mortgage Loan is a MOM Loanin recordable form from the Seller or the originator, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or as applicable, to “Deutsche Bank National Trust Company[ ], as Indenture TrusteeTrustee under the Indenture relating to People’s Financial Realty Mortgage Securities Trust, on behalf Series [ ], Mortgage-Backed Notes, [ ].” If, however, such Assignment is delivered endorsed in blank, then the Custodian may stamp such assignment in accordance with Section 2.3(a) of the Noteholders”Custodial Agreement;
(iv) the original intervening Assignments, if any and if available, with evidence of recording with respect thereon, showing an unbroken chain of title to each the Mortgage Loan in from the name of originator thereof to Person assigning it to the Indenture Trustee thereon (or Trustee; provided that if clause (w) in such document is not included because of a delay by the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel public recording office where such document has been provided delivered for recordation or such office as set forth in this Section 2.01(b)a matter of policy does not return the original of such document, the Seller shall include or cause to be in recordable form);
(iv) all intervening assignments of included a copy thereof certified by the Security Instrumentappropriate recording office, if applicable and only to the extent available to the Depositor with evidence of recording thereonavailable;
(v) the originals of each assumption, modification or substitution agreement, if any and if available, relating to the Mortgage Loan; and
(vi) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the policy preliminary title report, title binder or certificate of primary mortgage guaranty insurance, to title commitment on the extent available, if any;
(vi) Mortgaged Property with the original or a copy policy of the policy insurance to be delivered promptly following the receipt thereof. The Seller need not cause to be recorded any Assignment of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and availableMortgage; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case Assignment of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such for each Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment Loan shall be submitted for recording by the Seller in the manner described aboveSeller, at no expense to the Issuer Trust or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating evidencing at least 25% of the Note Principal Balance of the NotesBalance, (ii) the occurrence of a Master Servicer Event of Default or an Event of DefaultDefault under the Indenture, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and Seller, (iv) the occurrence of a master servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, of this Agreement and (v) if the Seller fails or an affiliate of the Seller is not the Servicer or the Subservicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to pay the cost Mortgagor under the related Mortgage (in which case only the Assignment of recording the assignments, such expense will Mortgage for that particular Mortgage must be paid recorded). Upon discovery by the Securities Administrator from funds Seller that recording of the assignments is required pursuant to one or more of the conditions set forth in the Payment Account preceding sentence, the Seller shall be required to deliver such assignments for recording as provided above, promptly and in any event within 30 days following receipt of such notice. The Seller shall furnish the Indenture Trustee, or its designated agent, with a copy of each assignment submitted for recording. In the event that any such assignment is lost or returned unrecorded because of a defect therein, the Seller shall promptly have a substitute assignment prepared or have such defect cured, as the case may be, and thereafter cause each such assignment to be duly recorded. To the extent an assignment referred to in clause (c)(iii) above is required to be recorded (including, without limitation, assignments for states which are not covered by the Opinion of Counsel in the prior paragraph), the Seller at its own expense shall complete and submit it for recording in the appropriate public office for real property records, with such assignment completed in favor of the Indenture Trustee. While such assignment to be recorded is being recorded, the Indenture Trustee shall retain a photocopy of such assignment. If any assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller is required to prepare a substitute assignment or cure such defect, as the case may be, and the Seller shall cause such substitute assignment to be recorded in accordance with this paragraph. Notwithstanding anything to the contrary contained in this Section 4.05 2.01, in those instances where the public recording office retains the original Mortgage after it has been recorded, the Seller shall be deemed to have satisfied its obligations hereunder upon delivery to the Indenture Trustee (or the Custodian, on behalf of the Indenture Trustee) of a copy of such Mortgage certified by the public recording office to be a true and complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Indenture Trustee because of any defect therein, the Seller shall prepare a substitute Assignment or cure such defect, as the case may be, and the Seller shall cause such Assignment to be recorded in accordance with this Agreementsection. If a defect in any Mortgage File is discovered which materially and adversely affects the value of the related Mortgage Loan, or the interests of the Noteholders or Certificateholders in such Mortgage Loan, including if any document required to be delivered to the Indenture Trustee has not been delivered (provided that a Mortgage File will not be deemed to contain a defect for an unrecorded assignment under clause (iii) above if the Seller has submitted such assignment for recording pursuant to the terms of the following paragraph), the Seller shall either (i) purchase such Mortgage Loan from the Trust Fund at the Purchase Price within 90 days after the date on which the Seller was notified of such defect or (ii) substitute a Substitute Mortgage Loan for the related Mortgage Loan upon the same terms and conditions set forth in Section 2.04 hereof for substitutions. The Seller shall exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian on behalf of the Indenture Trustee within 120 days of the Closing Date, with respect to the Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Purchaser pursuant to this Section 2.01. The Purchaser hereby acknowledges its acceptance of all right, title and interest to the Mortgage Loans and other property, now existing and hereafter created, conveyed to it pursuant to this Section 2.01, other than with respect to servicing rights with respect to the Mortgage Loans.
(c) The Depositor, the Seller and the Indenture Trustee agree that it is not intended that any Mortgage Loan be conveyed to the Trust that is either (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 by the Indiana Home Loan Practices Act effective January 1, 2005.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Peoples Choice Home Loan Securities Corp)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified and Substitute Mortgage Loans and the proceeds thereof and all rights under the Related Documents; (ii) all funds on deposit from time to time in the Payment Account and in all proceeds thereof; (iii) any REO Property; (iv) all funds on deposit from time to time in the Pre-Funding Accounts and the Interest Coverage Accounts and in all proceeds thereof; (v) all rights under (I) the Mortgage Loan Schedule, including all interest and principal due Purchase Agreement as assigned to the Issuer with respect to the Initial Mortgage Loans after and the Cut-off Date, but excluding any payments of principal and interest due on or prior Subsequent Mortgage Loan Purchase Agreements as assigned to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited Issuer, with respect to the Payment Accountrelated Subsequent Mortgage Loans to the extent provided in Section 2.03(a), (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (vII) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Countrywide Servicing Agreement, the EMC Servicing Agreement and the PHH Servicing Agreement as assigned to the Issuer by the related Assignment Agreement; and (viiivi) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche LaSalle Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (wa) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland Illinois or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (wa) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the related Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (xb) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (yc) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (zd) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related Servicer and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Initial Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date and in the case of the Subsequent Mortgage Loans which have been prepaid in full after the related Subsequent Cut-off Date and prior to the applicable Subsequent Transfer Date, the Depositor, in lieu of delivering the above documents, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Luminent Mortgage Trust 2005-1)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified and Substitute Mortgage Loans and the proceeds thereof and all rights under the Related Documents; (ii) all funds on deposit from time to time in the Master Servicer Collection Account, excluding any investment income from such funds; (iii) all funds on deposit from time to time in the Payment Account and in all proceeds thereof; (iv) any REO Property; (v) all rights under (I) the Mortgage Loan SchedulePurchase Agreement as assigned to the Issuer, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Accountextent provided in Section 2.03(a), (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (vII) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Wxxxx Fargo Servicing Agreement Agreement, as assigned to the Issuer by the Assignment Agreement; and (viiivi) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Servicer and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns Arm Trust, Mortgage-Backed Notes, Series 2005-9)
Conveyance of Mortgage Loans to Issuer. (a01) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account, the Master Servicer in the Master Servicer Collection Account and the Securities Administrator Indenture Trustee in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT HomeBanc Servicing Agreement as assigned to the Issuer by the Assignment Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b02) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i01) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii02) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii03) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv04) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v05) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi06) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii07) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in Indenture Trustee and the Payment Account Indenture Trustee shall be reimbursed for such expenses by the Trust Estate in accordance with Section 4.05 6.07 of this Agreementthe Indenture.
Appears in 1 contract
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified and Substitute Mortgage Loans and the proceeds thereof and all rights under the Related Documents; (ii) all funds on deposit from time to time in the Master Servicer Collection Account, excluding any investment income from such funds; (iii) all funds on deposit from time to time in the Payment Account and in all proceeds thereof; (iv) all funds on deposit from time to time in the Pre-Funding Accounts and the Interest Coverage Accounts and in all proceeds thereof; (v) any REO Property; (vi) all rights under (I) the Mortgage Loan SchedulePurchase Agreement as assigned to the Issuer, including all interest and principal due with respect to the Initial Mortgage Loans after and the Cut-off Date, but excluding any payments of principal and interest due on or prior Subsequent Mortgage Loan Purchase Agreements as assigned to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited Issuer, with respect to the Payment Accountrelated Subsequent Mortgage Loans to the extent provided in Section 2.03(a), (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, (iv) any REO Property, (vII) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Servicing Agreement Agreements, each as assigned to the Issuer by the related Assignment Agreement; and (viiivii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”, with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the related Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related Servicer and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Initial Mortgage Loans which have been prepaid in full after the Cut-off Date and prior to the Closing Date and in the case of the Subsequent Mortgage Loans which have been prepaid in full after the related Subsequent Cut-off Date and prior to the applicable Subsequent Transfer Date, the Depositor, in lieu of delivering the above documents, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Bear Stearns ARM Trust 2005-7)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account, the Master Servicer in the Master Servicer Collection Account and the Securities Administrator Indenture Trustee in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT HomeBanc Servicing Agreement as assigned to the Issuer by the Assignment Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche "U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; providedPROVIDED, howeverHOWEVER, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in Indenture Trustee and the Payment Account Indenture Trustee shall be reimbursed for such expenses by the Trust Estate in accordance with Section 4.05 6.07 of this Agreementthe Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Homebanc Mortgage Trust 2004-1)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in and the Mortgage Loan Schedule, including proceeds thereof and all interest and principal due with respect to rights under the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off DateRelated Documents; (ii) such assets as shall all funds on deposit from time to time be credited or are required by in the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, excluding any investment income from such funds; (iii) such assets relating to the Mortgage Loans as all funds on deposit from time to time may be held by the Servicer in the Protected Account and the Securities Administrator in the Payment Account, Account and in all proceeds thereof; (iv) any REO Property; (v)
(I) all rights under the Mortgage Loan Purchase Agreement as assigned to the Issuer to the extent provided in Section 2.03(a), (vII) all rights under the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), ) and (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (viiIII) the rights with respect to the MortgageIT Servicing Agreement Agreements, each as assigned to the Issuer by the related Assignment Agreement; and (viiivi) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(ba) In connection with the above such transfer and assignmentassignment of the Mortgage Loans, the Depositor hereby delivers shall deliver to, and deposit with, or cause to be delivered to and deposited with, the Custodian, on behalf of the Issuer, the following documents or instruments with respect to each Mortgage Loan:Loan so transferred and assigned (or such related documents as have been delivered to the Depositor by the Seller pursuant to the Mortgage Loan Purchase Agreement):
(i) The original Mortgage Note endorsed, "Pay to the order of ___________, without recourse" and signed in the name of the name of last endorsee, by an authorized officer of the last endorsee. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the endorsement must be by "[name of last endorsee], successor [by merger to or in interest to, as applicable] [name of predecessor]"; and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, the endorsement must be by "[name of last endorsee], successor in interest to [previous name]." The Mortgage Note shall include all intervening endorsements showing a complete chain of title from the originator to the last endorsee. A lost note affidavit (including a copy of the original Mortgage Note, endorsed without recourse ) may be delivered in blank or to the order lieu of the Indenture Trustee and showing an unbroken chain original Mortgage Note.
(ii) The original recorded Mortgage, with evidence of endorsements recording thereon, or, if the original Mortgage has not yet been returned from the originator thereof to the Person endorsing it in blank or to the Indenture Trusteerecording office, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if certified by the related Mortgage Loan is previous owner to be a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified true copy of the assignment (original of the Mortgage which may be has been delivered for recording in the form appropriate recording office of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located.
(iii) The original Assignment of Mortgage, executed in blank by either the Seller or its Servicer. If the Mortgage Loan was acquired by the last endorsee in a merger or other type of acquisition, the assignment must be by "[name of last assignee], successor [by merger to “Deutsche Bank National Trust Companyor in interest to, as Indenture Trusteeapplicable] [name of predecessor]"; and if the Mortgage Loan was acquired or originated by the last endorsee while doing business under another name, on behalf the assignment must be by "[name of last assignee], successor in interest to [previous name]."
(iv) The original policy of title insurance (or a preliminary title report if the original title insurance policy has not been received from the title insurance company).
(v) Originals of any intervening assignments of the Noteholders”Mortgage, with evidence of recording with respect thereon or, if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified by the Seller to each Mortgage Loan be a true copy of the original of the assignment which has been delivered for recording in the name appropriate recording office of the Indenture Trustee thereon (or if clause (w) jurisdiction in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);located.
(ivvi) all intervening assignments of the Security InstrumentWith respect to a Mortgage Loan that, if applicable and only according to the extent available to the Depositor with evidence of recording thereon;
(v) Mortgage Loan Schedule is covered by a primary mortgage insurance policy, the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent availableinsurance certificate, if any.
(vii) If indicated on the Mortgage Loan Schedule, originals of all assumption and modification agreements, if any, with originals or copies of the underlying instruments being modified.
(viii) With respect to each Additional Collateral Mortgage Loan,
(A) copy of the related Mortgage 100 Pledge Agreement for Securities Account or the Parent Power Guaranty and Security Agreement for Securities Account or the Parent Power Guaranty Agreement for Real Estate, as the case may be;
(viB) copy of the UCC-1 (applicable for South Carolina and Rhode Island only);
(C) an original form UCC-3, if applicable;
(D) for loans originated by a correspondent lender, an original assignment of security interest of the related Mortgage 100 Pledge Agreement or Parent Power Agreement, as the case may be.
(ix) With respect to each Cooperative Loan:
(A) the original proprietary lease;
(B) the original recognition agreement;
(C) the original security agreement;
(D) the original or a copy of the policy assignment of title insurance or mortgagee’s proprietary lease;
(E) the original cooperative stock certificate of title insurance or commitment or binder for title insuranceand stock power executed by borrower in blank;
(F) the original UCC-1 Financing Statements;
(G) the original UCC-3 Financing Statements; and
(viix) originals Power of all modification agreementsAttorney, if applicable and available; applicable. provided, however, that in lieu of the foregoing, the Depositor may deliver to (or cause to be delivered to) the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor (or its predecessor) in time to permit their delivery as specified above, the Depositor may deliver (or cause to be delivered) a true copy thereof with a certification by the related Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver (or cause to be delivered) photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage Loans, the Depositor may deliver (or cause to be delivered) lost note affidavits from the Selleraffidavits; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related originator and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of the Mortgage Loans which 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, may deliver to (or cause to be delivered to) the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver (or cause to be delivered) such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each No assignment of the Security Instrument to the Indenture Trustee to described above will be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assignsrecorded; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller or the Depositor and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in the Payment Account in accordance with Section 4.05 of this Agreement.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Merrill Lynch Mortgage Investors Trust Series 2005-A9)
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account, the Master Servicer in the Master Servicer Collection Account and the Securities Administrator Indenture Trustee in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT HomeBanc Servicing Agreement as assigned to the Issuer by the Assignment Agreement, (viii) the Corridor Contracts and (viiiix) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the Custodian, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “Deutsche "U.S. Bank National Trust CompanyAssociation, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; provided, however, that in lieu of the foregoing, the Depositor may deliver to the Custodian, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the Custodian, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or or
on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in Indenture Trustee and the Payment Account Indenture Trustee shall be reimbursed for such expenses by the Trust Estate in accordance with Section 4.05 6.07 of this Agreementthe Indenture.
Appears in 1 contract
Conveyance of Mortgage Loans to Issuer. (a) The Depositor concurrently with the execution and delivery of this Agreement, sells, transfers and assigns to the Issuer without recourse all its right, title and interest in and to (i) the Mortgage Loans identified in the Mortgage Loan Schedule, including all interest and principal due with respect to the Mortgage Loans after the Cut-off Date, but excluding any payments of principal and interest due on or prior to the Cut-off Date; (ii) such assets as shall from time to time be credited or are required by the terms of this Agreement to be credited to the Payment Master Servicer Collection Account, (iii) such assets relating to the Mortgage Loans as from time to time may be held by the Servicer in the Protected Account, the Master Servicer in the Master Servicer Collection Account and the Securities Administrator Indenture Trustee in the Payment Account, (iv) any REO Property, (v) the Required Insurance Policies and any amounts paid or payable by the insurer under any Insurance Policy (to the extent the mortgagee has a claim thereto), (vi) the Mortgage Loan Purchase Agreement to the extent provided in Subsection 2.03(a), (vii) the rights with respect to the MortgageIT AHM Servicing Agreement as assigned to the Issuer by the Assignment Agreement and (viii) any proceeds of the foregoing. Although it is the intent of the Depositor and the Issuer that the conveyance of the Depositor’s 's right, title and interest in and to the Mortgage Loans and other assets in the Trust Estate to the Issuer pursuant to this Agreement shall constitute a purchase and sale and not a loan, in the event that such conveyance is deemed to be a loan, it is the intent of the parties to this Agreement that the Depositor shall be deemed to have granted to the Issuer a first priority perfected security interest in all of the Depositor’s 's right, title and interest in, to and under the Mortgage Loans and other assets in the Trust Estate, and that this Agreement shall constitute a security agreement under applicable law.
(b) In connection with the above transfer and assignment, the Depositor hereby delivers to the CustodianIndenture Trustee, on behalf of the Issuer, with respect to each Mortgage Loan:
(i) the original Mortgage Note, endorsed without recourse in blank or to the order of the Indenture Trustee and showing an unbroken chain of endorsements from the originator thereof to the Person endorsing it in blank or to the Indenture Trustee, or lost note affidavit together with a copy of the related Mortgage Note;
(ii) the original Mortgage and, if the related Mortgage Loan is a MOM Loan, noting the presence of the MIN and language indicating that such Mortgage Loan is a MOM Loan, which shall have been recorded (or if the original is not available, a copy), with evidence of such recording indicated thereon (or if clause (w) in the proviso below applies, shall be in recordable form);
(iii) unless the Mortgage Loan is a MOM Loan, a certified copy of the assignment (which may be in the form of a blanket assignment if permitted in the jurisdiction in which the Mortgaged Property is located) in blank or to “"Deutsche Bank National Trust Company, as Indenture Trustee, on behalf of the Noteholders”", with evidence of recording with respect to each Mortgage Loan in the name of the Indenture Trustee thereon (or if clause (w) in the proviso below applies or for Mortgage Loans with respect to which the related Mortgaged Property is located in a state other than Maryland or an Opinion of Counsel has been provided as set forth in this Section 2.01(b), shall be in recordable form);
(iv) all intervening assignments of the Security Instrument, if applicable and only to the extent available to the Depositor with evidence of recording thereon;
(v) the original or a copy of the policy or certificate of primary mortgage guaranty insurance, to the extent available, if any;
(vi) the original or a copy of the policy of title insurance or mortgagee’s 's certificate of title insurance or commitment or binder for title insurance; and
(vii) originals of all modification agreements, if applicable and available; providedPROVIDED, howeverHOWEVER, that in lieu of the foregoing, the Depositor may deliver to the CustodianIndenture Trustee, the following documents, under the circumstances set forth below: (w) in lieu of the original Security Instrument (including the Mortgage), assignments to the Indenture Trustee or intervening assignments thereof which have been delivered, are being delivered or will, upon receipt of recording information relating to such documents required to be included thereon, be delivered to recording offices for recording and have not been returned to the Depositor in time to permit their delivery as specified above, the Depositor may deliver a true copy thereof with a certification by the Servicer, or its agent on its behalf, substantially to the effect that such copy is a true and correct copy of the original; (x) in lieu of the Security Instrument, assignment in blank or to the Indenture Trustee or intervening assignments thereof, if the applicable jurisdiction retains the originals of such documents (as evidenced by a certification from the Depositor to such effect) the Depositor may deliver photocopies of such documents containing an original certification by the judicial or other governmental authority of the jurisdiction where such documents were recorded or from the Depositor’s 's agent, escrow agent or closing attorney; (y) in lieu of the Mortgage Notes relating to the Mortgage LoansLoans identified on Exhibit 5 to the Mortgage Loan Purchase Agreement, the Depositor may deliver lost note affidavits from the Seller; and (z) the Depositor shall not be required to deliver intervening assignments or Mortgage Note endorsements between the related Underlying Seller and the Seller, between the Seller and the Depositor, between the Depositor and the Issuer, and between the Issuer and the Indenture Trustee; and provided, further, however, that in the case of Mortgage Loans which 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, may deliver to the Indenture Trustee, a certification to such effect and shall deposit all amounts paid in respect of such Mortgage Loans in the Payment Master Servicer Collection Account on the Closing Date. The Depositor shall deliver such original documents (including any original documents as to which certified copies had previously been delivered) to the CustodianIndenture Trustee, promptly after they are received. The Depositor shall cause the Seller, at its expense, to cause each assignment of the Security Instrument to the Indenture Trustee to be recorded not later than 180 days after the Closing Date, unless (a) such recordation is not required by the Rating Agencies Agency as evidenced in writing or an Opinion of Counsel addressed to the Indenture Trustee has been provided to the Indenture Trustee and the Issuer which states that recordation of such Security Instrument is not required to protect the interests of the Noteholders in the related Mortgage Loans or (b) MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record solely as nominee for the Seller and its successor and assigns; provided, however, notwithstanding the foregoing, each assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Issuer or the Indenture Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Notes aggregating at least 25% of the Note Principal Balance of the Notes, (ii) the occurrence of a Master Servicer Event of Default or an Event of Default, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller and (iv) the occurrence of a servicing transfer as described in Section 6.02 hereof. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the assignments, such expense will be paid by the Securities Administrator from funds in Indenture Trustee and the Payment Account Indenture Trustee shall be reimbursed for such expenses by the Trust Estate in accordance with Section 4.05 6.07 of this Agreementthe Indenture.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Structured Asset Mort Inv Inc Mort Back NTS Ser 2003-1)
