Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"): (i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date; (ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon; (iii) an original Assignment assigned in blank, without recourse; (iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments; (v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and (vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc), Pooling and Servicing Agreement (Argent Securities Inc)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC Ithe Trust Fund for the benefit of the Certificateholders, payments made including the amount to be deposited by or on behalf of the Trustee by Depositor into the Swap Administrator under the Swap Administration Agreement and the Swap AccountNet WAC Shortfall Reserve Fund. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers Trustee is hereby authorized and directed to enter into the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameCorridor Contracts. In connection with such transfer and assignment, the Depositor does hereby has caused the Sponsor to deliver to, and deposit withwith the Custodian, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]“Deutsche Bank National Trust Company, as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse," Mortgage Pass-Through Certificates, Series 2006-1” with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyindicated thereon or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Sponsor or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(2iii) if such copy unless the Mortgage Loan is certified by registered on the OriginatorMERS® System, delivery a duly executed original Assignment of the Mortgage, without recourse, in recordable form to Deutsche Bank National Trust Company, as trustee,” or to “Deutsche Bank National Trust Company, as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-1”;
(iv) the original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, Person assigning it to the Trustee (or to MERS, if the appropriate Custodian Mortgage Loan is registered on behalf the MERS® System and noting the presence of a MIN) or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Sponsor to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy; and
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Sponsor is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to the Custodian: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Sponsor, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Sponsor was not delivered to the Custodian pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Sponsor, or in the event such original cannot be delivered by the Sponsor, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Sponsor were delivered to the Custodian pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, the Depositor shall deliver or Sponsor need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Sponsor to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, ’s interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller Sponsor in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Sponsor is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the public recording office retains the original Mortgage after it has been recorded, the Sponsor shall be deemed to have satisfied its obligations hereunder upon delivery to the Custodian 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 Custodian because of any defect therein, the Sponsor is required, as described in the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, to prepare a substitute Assignment or cure such defect, as the case may be, and the Sponsor shall cause such Assignment to be recorded in accordance with this section. The Sponsor is required as described in the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian 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 Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Sponsor further agrees that it will cause, at the Sponsor's own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Sponsor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is unable to pay repurchased in accordance with the cost terms of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expensethis Agreement. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Depositor, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Sponsor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Trustee or any other Custodian or agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage Filefirst priority under applicable law and will be maintained as such throughout the term of the Agreement. Concurrently with the execution of this Agreement, such document the Interest Rate Swap Agreements shall be delivered promptly to the Trustee. In connection therewith, or the Company hereby directs the Trustee (not in its individual capacity, but solely in its capacity as such) to execute and deliver the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsIntereset Rate Swap Agreements.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-1), Pooling and Servicing Agreement (Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the PMI Policy and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R3)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement -A and the Swap Account. REMIC II-A. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee on its behalf an executed copy of the Mortgage Loan Purchase AgreementAgreement and the PMI Policy, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening AssignmentsMortgage Loan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if any; anda copy thereof;
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has not been returned from or an attorney’s opinion of title in jurisdictions where such is the applicable public recording office or (y) has been lost or such public recording office has retained the original customary evidence of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificatestitle; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.and
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-5), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2005-5)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of American Home Mortgage Assets LLC, Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of American Home Mortgage Assets LLC, Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets LLC), Pooling and Servicing Agreement (American Home Mortgage Assets LLC)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, certain payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by or on behalf of the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the PMI Policy and the Trustee, Pool Policy and the Trustee on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Xxxxx Fargo Bank, N.A.", as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc. Series 2005-Whq2), Pooling and Servicing Agreement (Park Place Securities, Inc. Series 2005-Whq2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey in trust to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the (i) each Mortgage Loans Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) the rights of the Depositor under the Mortgage Loan Purchase Agreement, (v) the right to receive any amounts payable under the Cap Contract, (vi) all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund and (vii) all proceeds of any of the Swap Administrator under the Swap Administration Agreement and the Swap Accountforegoing. Such assignment includes all interest and principal received due and collected by the Depositor or the Master Servicer on or after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameLoans. In connection with such transfer and assignment, the Depositor Depositor, does hereby deliver to, and deposit withwith the Custodian on behalf of the Trustee, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall in accordance with Section 2.08, deliver or cause caused to be delivered to the Custodian Trustee with respect to each Subsequent Mortgage Loan, the following documents or instruments (with respect to each Mortgage Loan, a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed either (A) in blank, without recourse, or (B) in the following form: "“Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreementTrustee, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, ” or with respect to any lost Mortgage Note, an original Lost Note AffidavitAffidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related mortgage note; provided provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]1.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) an original Assignment Assignment, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blankblank or (B) to “Deutsche Bank National Trust Company, as Trustee, without recourse;”
(iv) the an original recorded copy of any intervening Assignment or Assignments assignment of Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentsassignments;
(v) the original or a certified copy of lender’s title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent . The Depositor herewith also delivers to the issuance Trustee an executed copy of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow companyMortgage Loan Purchase Agreement. If any of the documents referred to in Sections Section 2.01(ii), (iii) or (iv) above has as of the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the TrusteeTrustee no later than the Closing Date (or Subsequent Transfer Date, with respect to Subsequent Mortgage Loans), of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's ’s title insurance policy policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(vi2.01(v) above, the Depositor shall deliver or cause to be delivered to the Custodian on behalf of the Trustee, the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original or a certified copy thereof to be delivered to the appropriate Custodian on behalf of the Trustee, promptly after upon receipt thereof, the original lender's title insurance policy. The Servicer or the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Trustee (in its capacity as Selleror the Custodian on behalf of the Trustee) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between notify the Master Servicer and the Trustee, following Servicer shall enforce the later obligations of (i) the Closing Date, (ii) the date on which the Seller receives under the Assignment from Mortgage Loan Purchase Agreement to cure such defect or deliver such missing document to the Trustee or the Custodian and (iii) within 120 days. If the date of receipt by Seller does not cure such defect or deliver such missing document within such time period, the Master Servicer shall enforce the obligations of the recording information Seller to either repurchase or substitute for a Mortgagesuch Mortgage Loan in accordance with Section 2.03. In connection with the foregoing, it is understood that the Trustee (or the Custodian on behalf of the Trustee) submit or shall have no duty to discover any such defects except in the course of performing its review of the Mortgage Files to the extent set forth herein. The Trustee shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to cause the Assignments which were delivered in blank to be submitted for recording, at no expense completed and to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment record all Assignments referred to in Section 2.01(iii) above hereof and, to the extent necessary, in Section 2.01(iv) hereof, and to deliver such assignments for recording within 180 days of the following form: "[_], as Trustee under the applicable agreement." Closing Date. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Trustee shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to promptly prepare or cause to be prepared have a substitute Assignment prepared or cure or cause to be cured have such defectdefect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless the Trustee (or the Custodian on behalf of the Trustee) and the Depositor receive notice that such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided furtherprovided, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master a Servicer Termination TestEvent of Termination, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and hereof, (v) if upon receipt of notice from the Seller is not the Master Servicer and with respect to any one Assignment or MortgageServicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more Delinquent and such recordation would be necessary to facilitate conversion of the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable direction by the NIMS Insurer. In the event of (i) through (vi) set forth in the immediately preceding sentence, the Trustee shall enforce the obligations of the Seller to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of notice by the Seller. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee (if it reasonably believes it will be reimbursed) and the Trustee shall be reimbursed for such expenses by the Trust. The Servicer shall not be deemed to be in breach of its obligations to service in accordance with the Servicing Standard by any delay in its servicing activities resulting from the failure to submit the Assignments for recording. The Servicer shall forward to the Custodian original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Servicer shall provide the Custodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall be reimbursable to provide the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, of any document submitted for recordation or to a copy of such document certified by the appropriate Custodian on behalf public recording office to be a true and complete copy of the Trustee, are and shall be held by or on behalf original within 365 days of the Seller, the Depositor or the Master Servicer, as the case may be, in trust its submission for the benefit of the Trustee on behalf of the Certificateholdersrecordation. In the event that any the Servicer cannot provide a copy of such original document certified by the public recording office within such 365 day period, the Servicer shall deliver to the Custodian, within such 365 day period, an Officers’ Certificate of the Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation, if known and (D) specify the date the applicable recorded document is required pursuant expected to be delivered to the terms Custodian, and, upon receipt of this Section a copy of such document certified by the public recording office, the Servicer shall immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Servicer shall deliver a copy of such document certified by an officer of the Servicer to be a part true and complete copy of a the original to the Custodian. The Depositor shall deliver or cause the Seller to deliver (by regular mail) to the Servicer copies of all trailing documents required to be included in the Mortgage FileFile at the same time the originals or certified copies thereof are delivered to the Custodian, such document shall be delivered promptly documents including but not limited to the Trusteemortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. Except as provided in Section 3.17, the Servicer shall not be responsible for any Custodian fees or to the appropriate Custodian on behalf of the Trustee. Any other costs incurred in obtaining such original document delivered to documents or held by the Depositor that is not required for any such costs it may incur in connection with performing its obligations pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master ServicerAgreement. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "“High-Cost Home Loan" ” as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Cap Contract on the Closing Date and thereafter on behalf of the Holders of the Adjustable-Rate Certificates. The Depositor, the Servicer and the Holders of the Adjustable-Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall execute, deliver and perform its obligations under the Cap Contract and shall do so solely in its capacity as Trustee of the Trust Fund and not in its individual capacity.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3), Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2005-Ffh3)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc.), Pooling and Servicing Agreement (Boardwalk Mortgage Securities Inc.)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement Certificateholders and the Swap AccountCertificate Insurer, including the amount to be deposited by or on behalf of the Depositor into the Net WAC Shortfall Reserve Fund. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has caused the Sponsor to deliver to, and deposit withwith the Custodian, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage NoteNote endorsed without recourse in blank or to, endorsed in blank, without recourse, or in the following form: "Pay to the order of “[_NAME OF THE TRUSTEE], as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse," Asset-Backed Certificates, Series 200_-_” with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyindicated thereon or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Sponsor or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(2iii) if such copy unless the Mortgage Loan is certified by registered on the OriginatorMERS® System, delivery a duly executed original Assignment of the Mortgage, without recourse in blank or to, in recordable form to [NAME OF THE TRUSTEE], as trustee,” or to “[NAME OF THE TRUSTEE], as trustee for holders of Impac Secured Assets Corp., Asset-Backed Certificates, Series 200_-_”;
(iv) the original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, Person assigning it in blank or to the appropriate Custodian Trustee (or to MERS, if the Mortgage Loan is registered on behalf the MERS® System and noting the presence of a MIN) or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Sponsor to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy; and
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Sponsor is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to the Custodian: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Sponsor, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Sponsor was not delivered to the Custodian pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Sponsor, or in the event such original cannot be delivered by the Sponsor, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Sponsor were delivered to the Custodian pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, the Depositor shall deliver or Sponsor need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Sponsor to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, ’s interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller Sponsor in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Sponsor is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the public recording office retains the original Mortgage after it has been recorded, the Sponsor shall be deemed to have satisfied its obligations hereunder upon delivery to the Custodian 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 Custodian because of any defect therein, the Sponsor is required, as described in the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, to prepare a substitute Assignment or cure such defect, as the case may be, and the Sponsor shall cause such Assignment to be recorded in accordance with this section. The Sponsor is required as described in the Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian 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 Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Sponsor further agrees that it will cause, at the Sponsor’s own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Sponsor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders and the Certificate Insurer by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is unable to pay repurchased in accordance with the cost terms of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expensethis Agreement. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In Except as may otherwise expressly be provided herein, none of the Depositor, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders and the Certificate Insurer. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Sponsor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Trustee or any other Custodian or agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage Filefirst priority under applicable law and will be maintained as such throughout the term of the Agreement. Concurrently with the execution of this Agreement, such document the Swap Agreement shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Supplemental Interest Trust Trustee. Any such original document delivered to or held by In connection therewith, the Depositor that is not required pursuant hereby directs the Supplemental Interest Trust Trustee (solely in its capacity as such) to execute and deliver the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsSwap Agreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase AgreementAgreement and delivers to the Paying Agent $1,000 for deposit into the Net WAC Rate Carryover Reserve Account, and the Trustee, Trustee and the Paying Agent acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigneda Custodian on its behalf, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) with respect to each Mortgage Loan so transferred and assigned:
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the The original recorded Mortgage, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) An assignment from the Originator or an Affiliate of the Originator to the Trustee in recordable form of the Mortgage which may be included, where permitted by local law, in a blanket assignment or assignments of the Mortgage to the Trustee, including any intervening assignments and showing a complete chain of title from the original Assignment assigned in blank, without recoursemortgagee named under the Mortgage to the Originator or an Affiliate of the Originator and to the Trustee;
(iv) the Any original recorded intervening Assignment assumption, modification, buydown or Assignments showing a complete chain of assignment from the originator conversion-to- fixed-interest-rate agreement applicable to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening AssignmentsLoan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if anya copy thereof; and
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment copy of the preliminary title report and the lender's recording instructions, with the original to be delivered within 180 days of the Closing Date or uniform binder or preliminary report an attorney's opinion of title issued in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of such Mortgage, the Depositor may, (a) in lieu of delivering such original recorded Mortgage referred to in clause (I)(ii) above, deliver to the Trustee (or a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (I)(iii) or (II)(iv) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of the title insurance or escrow company. If any of the documents policy referred to in Sections 2.01(ii)clause (I)(vii) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such title insurance referred to in clause (I)(vii) above, deliver to the Trustee (or a Custodian on behalf of the Trustee) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original or a copy of such policy (which may be a certificate relating to a master policy of title insurance) to the Trustee (or a Custodian on behalf of the Trustee) within 180 days of the Closing Date, in instances where an original assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (I)(v) or (II)(viii) above, deliver a certified copy thereof. To the extent not already recorded, the Master Servicer, at the expense of the Seller shall promptly (and in no event later than five Business Days following the later of the Closing Date and the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to any Trust REMIC, in the appropriate public office for real property records, each Assignment delivered to it pursuant to(I)(iii) and (II)(iv) above and shall promptly submit or cause to be submitted for filing, each Form UCC-3 assignment and the UCC-1 financing statement delivered to it pursuant to (II)(vi) above. In the event that any such Assignment, Form UCC-3 or Form UCC-1, as applicable, is lost or returned unrecorded because of a defect therein, the Master Servicer, at the expense of the Seller, shall promptly prepare or cause to be prepared a substitute Assignment, Form UCC-3 or Form UCC-1, as applicable, or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, the Master Servicer shall not cause to be recorded any Assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered or caused to be delivered by the Seller to the Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's interest in the related Mortgage Loan; provided, however, notwithstanding the delivery of any Opinion of Counsel, the Master Servicer shall submit each Assignment for recording, at no expense to the Trust Fund or the Master Servicer, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) above has the occurrence of a servicing transfer as described in Section 7.02 of this Agreement and (v) with respect to any one Assignment the occurrence of a foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording the Assignments, such expense will be paid by the Master Servicer and the Master Servicer shall be reimbursed for such expenses by the Trust as set forth herein. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Closing Date been submitted for recording but either Cut-off Date, if any original Mortgage Note referred to in (xI)(i) has not been returned from the applicable public recording office or (yII)(i) has been lost or such public recording office has retained the original of such documentabove cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) of a copy photocopy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be Mortgage Note, if available, with a true and complete copy lost note affidavit. If any of the original that Mortgage Notes for which a lost note affidavit was submitted for recording and (2) if such copy is certified by the Originator, delivery delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) is subsequently located, promptly upon receipt thereof of either the such original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor Mortgage Note shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption assumption, modification, consolidation or modification extension of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsin the New Jersey Home Ownership Act effective November 27, 2003, the New Mexico Home Loan Protection Act, effective January 1, 2004 and the Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc. Series 2004 - HYB4), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc. Series 2004 - HYB4)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement -A and the Swap AccountREMIC II. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening AssignmentsMortgage Loan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if any; anda copy thereof;
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has not been returned from or an attorney’s opinion of title in jurisdictions where such is the applicable public recording office or (y) has been lost or such public recording office has retained the original customary evidence of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificatestitle; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.and
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust, Series 2005-10), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2006-Ar2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R1), Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2005-R2)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of American Home Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of American Home Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (American Home Mortgage Securities LLC), Pooling and Servicing Agreement (American Home Mortgage Securities LLC)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase AgreementAssignment Agreements, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigneda Custodian on its behalf, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) with respect to each Mortgage Loan so transferred and assigned:
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of the related Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the related Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an original Assignment assigned assignment from the related Originator or an Affiliate of the related Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS(R) System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender's recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney's opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Seller shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Servicer, at the expense of the Seller) , shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25[__]% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately [__]% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. The Depositor shall deliver or cause the Seller to deliver to the Servicer copies of all trailing documents required to be included in the servicing file at the same time the originals or certified copies thereof are delivered to the Trustee or Custodian, such documents including but not limited to the mortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. The Servicer shall not be responsible for any custodian fees or other costs incurring in obtaining such documents and the Depositor shall cause the Servicer to be reimbursed for any such costs it may incur in connection with performing its obligations under this Agreement. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Cap Contract on the Closing Date and thereafter on behalf of the Trust and the Holders of the Floating Rate Certificates. The Seller, the Depositor, the Servicer, the Trust Administrator and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall execute, deliver and perform the Trust Fund's obligations under the Cap Contract and shall do so solely in its capacity as Trustee of the Trust Fund and not in its individual capacity. The Trustee shall not have any responsibility for the contents, adequacy or sufficiency of the Cap contract, including, without limitation, any representations and warranties contained therein.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master related Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date); provided that such assignment shall not include any Servicing Rights with respect to the SRO Mortgage Loans. The Depositor herewith delivers to the Trustee and the Trust Administrator an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders. Notwithstanding anything provided herein to the contrary, acknowledges receipt each of the sameparties hereto agrees and acknowledges that, notwithstanding the transfer, conveyance and assignment of the Mortgage Loans from the Depositor to the Trustee pursuant to this Agreement, the Servicing Rights Owner remains the sole and exclusive owner of the Servicing Rights with respect to the SRO Mortgage Loans. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of such Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of such Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the related Originator or an Affiliate of such Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (v) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date. In instances where an original assumption, promptly upon receipt thereof any other modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original documents constituting of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe related Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master related Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) related Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments related Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the related Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the Trusteerelated Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee related Servicer and such Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In the event an Assignment of Mortgage is not recorded with respect to a Mortgage Loan, neither the Trustee nor the related Servicer will have any obligation for its failure to receive or act on notices with respect to such Mortgage Loan that the Trustee or such Servicer would have received had such Assignment of Mortgage been recorded. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the related Servicer to, and the related Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master related Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master related Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties Depositor and the Trustee hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC II and, payments made to for the Trustee by benefit of the Swap Administrator under Holders of the Swap Administration Agreement and Class A-1 Certificates, the Swap AccountCap Contract. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as at the expense of the Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as at the expense of the Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure any jurisdiction where the Rating Agencies do not require recordation in order to record would result in a withdrawal or a downgrading by any Rating Agency receive the ratings on the Certificates at the time of the rating on any Class of Certificatestheir initial issuance; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (at the expense of the Seller) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor Depositor, the Seller or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset BCKD Ps THR Cert Ser 2002-Ar1), Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset BCKD Ps THR Cert Ser 2002-Ar1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, the Interest Rate Swap Agreement certain payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amounts and the Trusteerequired deposit to the Interest Coverage Accounts, and the Trustee on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Wells Fargo Bank, X.X., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Wells Fargo Bank, N.A.", as Trustee Xxxxtee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-Whq2), Pooling and Servicing Agreement (Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-Whq2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase AgreementAssignment Agreements, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigneda Custodian on its behalf, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) with respect to each Mortgage Loan so transferred and assigned:
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of the related Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the related Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an original Assignment assigned assignment from the related Originator or an Affiliate of the related Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS(R) System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender's recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney's opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Cap Contract on the Closing Date and thereafter on behalf of the Trust and the Holders of the Floating Rate Certificates. The Sponsor, the Depositor, the Servicer, the Trust Administrator and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall execute, deliver and perform the Trust Fund's obligations under the Cap Contract and shall do so solely in its capacity as Trustee of the Trust Fund and not in its individual capacity. The Trustee shall not have any responsibility for the contents, adequacy or sufficiency of the Cap contract, including, without limitation, any representations and warranties contained therein.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wfhe1, Asset-Backed Pass-Through Certificates, Series 2006-Wfhe1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee the Original Pre-Funded Amounts, the required deposit to the Interest Coverage Accounts and an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "“Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's ’s title insurance policy or an attorney's ’s opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's ’s title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's ’s title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]“Deutsche Bank National Trust Company, as Trustee under the applicable agreement." ” In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "“High-Cost Home Loan" ” as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust), Pooling and Servicing Agreement (Argent Securities Inc. Series 2006-W3 Trust)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee the Original Pre-Funded Amounts, the required deposit to the Interest Coverage Accounts, an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-W2), Pooling and Servicing Agreement (Argent Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-W2)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers Master Servicer hereby acknowledges the receipt by it of cash in an amount equal to $159,275.10 (the Trustee an executed copy of "Special Deposit"), representing interest at the Mortgage Loan Purchase AgreementRate, for the calendar month of June 2000, for those Mortgage Loans which do not have Monthly Payments due on July 1, 2000. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Trustee, on behalf of Available Distribution Amount for the Certificateholders, acknowledges receipt of the sameDistribution Date in July 2000. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order Bankers Trust Company of [_]California, N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 2000-2" with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyMortgage or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Seller or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(iii) a duly executed original Assignment of the Mortgage, without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2000-2";
(iv) if such copy is certified by the Originator, delivery original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, or Person assigning it to the appropriate Custodian on behalf of Trustee or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Seller to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy;
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement; and
(viii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance for each Mortgage Loan so identified on the Mortgage Loan Schedule (other than a Radian Lender-Paid PMI Policy). The Seller is obligated as described in the Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was not delivered to the Trustee pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the Depositor shall deliver or Seller need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, 's interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid by the Trustee and shall be reimbursable deemed to have satisfied its obligations hereunder upon delivery to the 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 Trustee because of any defect therein, the Seller is required, as an Extraordinary Trust Fund Expensedescribed in the Mortgage Loan Purchase Agreement, to 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 section. The Seller is required as described in the Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to each Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the Uncertificated REMIC I Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the Uncertificated REMIC I Regular Interests by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans and the Uncertificated REMIC I Regular Interests are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans and the Uncertificated REMIC I Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the Uncertificated REMIC I Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the Uncertificated REMIC I Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Sponsor to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Sponsor "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 200---, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Sponsor to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Sponsor, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of Impac Secured Assets Corp. Mortgage Pass-Through Certificates, Series 200---", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Sponsor to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Sponsor (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Sponsor is obligated pursuant to the Sponsor's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Sponsor, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Sponsor was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySponsor, or in the event such original title policy is unavailablecannot be delivered by the Sponsor, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Sponsor were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Sponsor shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Sponsor is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Sponsor is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Sponsor's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSponsor to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or pen-nit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor 's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Sponsor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by Impac Funding Corporation to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp), Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Bk Pas THR Cert Se 2004 R3), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Asset-Backed Pass-Through Certificates Series 2004-R4)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "“Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's ’s title insurance policy or an attorney's ’s opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's ’s title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's ’s title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]“Deutsche Bank National Trust Company, as Trustee under the applicable agreement." ” In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "“High-Cost Home Loan" ” as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R6), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc., Asset-Backed Pass-Through Certificates, Series 2005-R5)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as SellerOriginator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as SellerOriginator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Originator) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Originator is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Asset Backed Pass Through Certificates Series 2003-4), Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Ast Back Ps THR Cert Ser 2003-1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the PMI Policy, the Original Pre-Funded Amounts and the required deposits to the Interest Coverage Accounts and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.10, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as SellerOriginator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as SellerOriginator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Originator) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Originator is not the Master Servicer and with respect to any one Assignment or assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Backed Thru Cer Ser 2002-5), Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc as Bk Ps THR CRTS Se 02-4)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Assignment Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy Trust Administrator on behalf of the Mortgage Loan Purchase AgreementTrustee executed copies of the Assignment Agreement and the PMI Policy, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 2 contracts
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Wfhe2), Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Wfhe1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby sell, transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights assets of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Fund. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans Loans, other than Subsequent Mortgage Loans, on or after the Cut-off Date (other than payments of principal and interest Scheduled Payments due on such the Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee, or to the Custodian as the Trustee's designated agent, the following documents or instruments with respect to each Mortgage Loan and the Depositor shall, in accordance with Section 2.11, deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Subsequent Mortgage Loan:
(A) The electronic Mortgage Loan so transferred and assignedSchedule, and the Depositor shall deliver or cause to be a copy of which has also been delivered to the Custodian Servicer, the following documents or instruments (a "Mortgage File"):Backup Servicer, the Master Servicer and the Trustee.
(iB) the original The Original Mortgage Note, Note endorsed in blankblank or, without recourse, or in the following form: "Pay to the order of [_]U.S. Bank National Association, as Trustee under the applicable agreementfor Terwin Mortgage Trust 2004-22SL, Asset-Backed Certificates, Series 2004-22SL, without recourse," together with all prior and riders thereto. The Mortgage Note shall include all intervening endorsements showing a complete chain of endorsement the title from the originator to the Person so endorsing to the Trustee, or with respect to any lost Transferor.
(C) Except as provided below and for each Mortgage Note, an original Lost Note Affidavit; provided however, Loan that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loansis not a MERS Loan, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage together with all riders thereto, with evidence of recording thereon, and or, if the original Mortgage has not yet been returned from the recording office, a copy, copy of the original Mortgage together with all riders thereto certified by the Transferor to be true copy of the original of the Mortgage that has been delivered for recording in the appropriate recording office of the jurisdiction in which the Mortgaged Property is located and in the case of each MERS Loan, the original Mortgage together with all riders thereto, noting the presence of the MIN of the Loan and either language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded.
(D) In the case of each Mortgage Loan that is not a MERS Loan, the original Assignment of each Mortgage in blank or, to "U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2004-22SL, Asset-Backed Certificates, Series 2004-22SL, without recourse."
(E) The original policy of title insurance (or a preliminary title report, commitment or binder if the original title insurance policy has not been received from the title insurance company).
(F) Originals of any intervening assignments of the Mortgage, with evidence of recording thereon or, if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified to be a true copy of the recorded power original of attorneythe assignment which has been sent for recording in the appropriate jurisdiction in which the Mortgaged Property is located.
(G) Originals of all assumption and modification agreements, if any. If in connection with any Mortgage Loan that is not a MERS Mortgage Loan, the Depositor cannot deliver the Mortgage, Assignments of Mortgage was executed pursuant to a power of attorneyor assumption, consolidation or modification, as the case may be, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) if applicable, concurrently with the original recorded intervening Assignment or Assignments showing execution and delivery of this Agreement solely because of a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated delay caused by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office where such Mortgage, Assignments of Mortgage or (y) assumption, consolidation or modification, as the case may be, has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted delivered for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) aboverecordation, the Depositor shall deliver or cause to be delivered to the TrusteeTrustee (or the Custodian) written notice stating that such Mortgage or assumption, consolidation or modification, as the case may be, has been delivered to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereofpublic recording office for recordation. Thereafter, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the TrusteeTrustee (or the Custodian) such Mortgage, Assignments of Mortgage or to assumption, consolidation or modification, as the appropriate Custodian on behalf case may be, with evidence of the Trusteerecording indicated thereon, promptly if applicable, upon receipt thereof from the public recording office. To the extent any other original documents constituting a part of required endorsement is not contained on a Mortgage File received with respect Note or an Assignment of Mortgage, the Depositor shall make or cause such endorsement to any be made. As promptly as practicable subsequent to such transfer and assignment and delivery to it of each Assignment of Mortgage Loanpursuant to clause (F) above, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than any event, within thirty (30) Business Daysdays thereafter, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of Seller shall (i) affix the Closing DateTrustee's name to each Assignment of Mortgage, as the assignee thereof, (ii) the date on which the Seller receives the cause such Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause Mortgage to be submitted completed in proper form for recording, at no expense to the Trust Fund or the Trustee, recording in the appropriate public office for real property recordsrecords within thirty (30) days after receipt thereof and (iii) cause to be delivered for recording in the appropriate public office for real property records the Assignments of Mortgages to the Trustee, each except that, with respect to any Assignment of Mortgage as to which the Seller has not received the information required to prepare such Assignment of Mortgage in recordable form, the Seller's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after the receipt thereof, and the Seller need not cause to be recorded any assignment of Mortgage referred to in Sections 2.01(iii) and clause (ivF) above which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller (at the Seller's expense) to the Trustee and shall execute each original Assignment referred the Securities Administrator within thirty (30) days of the Closing Date, acceptable to in Section 2.01(iii) above the Rating Agencies, the recordation of such assignment of Mortgage is not necessary to protect the Trustee's and the Certificateholders' interest in the following form: "[_], as Trustee under the applicable agreement." related Mortgage Loan. In the event that any such Assignment assignment of Mortgage is lost or returned unrecorded because of a defect thereinnot recorded, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costsServicer, the Assignments Trustee, the Securities Administrator, the Backup Servicer and the Servicer shall not be required to be submitted have no liability for recording (except with respect to any Mortgage Loan located in Maryland) unless such its failure to record would result in a withdrawal receive or a downgrading by act on notices related to such assignment of Mortgage or otherwise. In connection with the assignment of any Rating Agency MERS Mortgage Loan, the Seller agrees that it will take (or shall cause the Master Servicer or the Servicer to take), at the expense of the rating on any Class Seller (with the cooperation of Certificates; provided furtherthe Depositor and the Trustee), however, each Assignment shall be submitted for recording such actions as are necessary to cause the MERS System to indicate that such Mortgage Loans have been assigned by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans that are not delivered repurchased in accordance with this Agreement) in such computer files the information required by the MERS System to identify the series of the Certificates issued in connection with the transfer of such Mortgage Loans to the TrusteeTrust. The ownership of each Mortgage Note, or to the appropriate Custodian on behalf Mortgage and the contents of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, related Mortgage File is vested in trust for the benefit of the Trustee on behalf of the Certificateholders. In None of the event Depositor, the Master Servicer, the Servicer nor the Securities Administrator shall take any action inconsistent with such ownership and shall not claim any ownership interest therein. The Depositor, the Master Servicer, the Servicer and Securities Administrator shall respond to any third party inquiries with respect to ownership of the Mortgage Loans by stating that any such original document ownership is required pursuant to held by the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian Trustee on behalf of the Certificateholders. The Depositor agrees to take no action inconsistent with the Trustee's ownership of the Mortgage Loans, to promptly indicate to all inquiring parties that the Mortgage Loans have been sold and to claim no ownership interest in the Mortgage Loans. Any such original document delivered It is the intention of this Agreement that the conveyance of the Depositor's right, title and interest in and to or held by the Trust Fund pursuant to this Agreement shall constitute a purchase and sale and not a loan. If a conveyance of Mortgage Loans from the Seller to the Depositor that is characterized as a pledge and not required pursuant a sale, then the Depositor shall be deemed to have transferred to the terms Trustee all of the Depositor's right, title and interest in, to and under the obligations of the Seller deemed to be secured by said pledge; and it is the intention of this Agreement that the Depositor shall also be deemed to have granted to the Trustee a first priority security interest in all of the Depositor's right, title, and interest in, to and under the obligations of the Seller to the Depositor deemed to be secured by said pledge and that the Trustee shall be deemed to be an independent custodian for purposes of perfection of the security interest granted to the Depositor. If the conveyance of the Mortgage Loans from the Depositor to the Trustee is characterized as a pledge, it is the intention of this Agreement that this Agreement shall constitute a security agreement under applicable law, and that the Depositor shall be deemed to have granted to the Trustee a first priority security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans, all payments of principal of or interest on such Mortgage Loans, all other rights relating to and payments made in respect of the Trust Fund, and all proceeds of any thereof. If the trust created by this Agreement terminates prior to the satisfaction of the claims of any Person in any Certificates, the security interest created hereby shall continue in full force and effect and the Trustee shall be deemed to be the collateral agent for the benefit of such Person. In addition to the conveyance made in the first paragraph of this Section 2.01, the Depositor does hereby convey, assign and set over to be a the Trustee for the benefit of the Certificateholders its rights and interests under the Sale Agreement, including the Depositor's right, title and interest in the representations and warranties contained in the Sale Agreement, the rights in the Transfer Agreement described therein, and the benefit of the repurchase obligations and the obligation of the Seller contained in the Sale Agreement to take, at the request of the Depositor or the Trustee, all action on its part which is reasonably necessary to ensure the enforceability of a Mortgage FileLoan. The Trustee hereby accepts such assignment, and shall be delivered promptly entitled to exercise all rights of the Master ServicerDepositor under the Sale Agreement as if, for such purpose, it were the Depositor. The parties hereto understand foregoing sale, transfer, assignment, set-over, deposit and agree conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. It is agreed and understood by the Depositor, the Servicer and the Trustee that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is either (i) a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsin the New Jersey Home Ownership Act effective November 27, 2003, in the New Mexico Home Loan Protection Act, effective January 1, 2004 and the Massachusetts Predatory Home Loan Practices Act, effective November 7, 2004.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Terwin Mortgage Trust, Series TMTS 2004-22sl)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse recourse, in trust for the benefit of the Certificateholders and the Certificate Insurer, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the to: (i) each Mortgage Loans Loan identified on the Mortgage Loan Schedule, including the rights related Stated Principal Balance as of the Depositor under the Mortgage Loan Purchase AgreementCut-off Date, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by thereon after the Depositor or the Master Servicer on or with respect to the Mortgage Loans Cut-off Date (other than payments of interest and principal and interest due on such Mortgage Loans on or before the Cut-off Date). The ; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor herewith delivers to the Trustee an executed copy of under the Mortgage Loan Purchase Agreement, ; and (vi) all other assets included or to be included in the Trustee, on behalf of Trust Fund. The Depositor hereby directs the Certificateholders, acknowledges receipt of Trustee to execute the sameCorridor Agreements. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or its designated agent (the "Custodian"), the following documents or instruments with respect to each Mortgage Loan so transferred and assignedassigned (with respect to each Mortgage Loan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed either (A) in blank, without recourse, blank or (B) in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreementTrustee, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee", or with respect to any lost Mortgage Note, an original Lost Note AffidavitAffidavit stating that the original Mortgage Note was lost, misplaced or destroyed, together with a copy of the related Mortgage Note; provided provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Stated Principal Balance of which is less than or equal to [_]2.0% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) an original Assignment Assignment, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blankblank or (B) to "Deutsche Bank National Trust Company, as Trustee, without recourse";
(iv) the an original recorded copy of any intervening Assignment or Assignments Assignment, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentsassignments;
(v) the original or a certified copy of the lender's title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) . With respect to up to 30% of the original lender's title insurance policy Mortgage Loans, the Depositor may deliver all or an attorney's opinion a portion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent each related Mortgage File to the issuance of Trustee not later than five Business Days after the Closing Date (such policyMortgage Loans, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company"Delayed Delivery Mortgage Loans"). If any of the documents referred to in Sections Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of no later than the TrusteeClosing Date, of a copy of each such document certified by the Originator Servicer, in its capacity as Seller, in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the OriginatorServicer, in its capacity as Seller, delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of the TrusteeCustodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(vi2.01(v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereofCustodian, the original lender's or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance policyor escrow company, with the original or a certified copy thereof to be delivered to the Trustee or the Custodian, promptly upon receipt thereof. The Servicer or the Depositor shall deliver or cause to be delivered to the Trustee, Trustee or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Servicer, in its capacity as Seller, shall have 90 days to cure such defect or deliver such missing document to the Trustee or the Custodian, to the extent required pursuant to Section 2.03. If the Seller does not cure such defect or deliver such missing document within such time period, the Servicer, in its capacity as Seller, shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03, to the extent required pursuant to Section 2.03. The Depositor (at the expense of the Seller) shall promptly (and cause the Assignments which were delivered in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause blank to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above completed and shall execute each original Assignment cause all Assignments referred to in Section 2.01(iii) above hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded. The Depositor shall furnish the following form: "[_]Trustee, as Trustee under the applicable agreement." 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 Master Servicer (in its capacity as Seller) Depositor shall promptly prepare or cause to be prepared have a substitute Assignment prepared or cure or cause to be cured have such defectdefect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of CertificatesCertificates (with respect to the Class A Certificates only, without regard to the Certificate Policy; provided further, however, each Assignment shall be submitted for recording by the Seller Originator (or by the Servicer at the expense of the Originator in the case of clauses (v) and (vi) below) in the manner described above, at no expense to the Trust Fund Fund, the Servicer or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and hereof, (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related MortgageMortgage and (vi) with respect to any Assignments, the payment in full of the related Mortgage Note if required in the applicable jurisdiction. Notwithstanding the foregoing, if the Master Servicer Originator is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All The Depositor herewith delivers to the Trustee an executed original of the Mortgage Loan Purchase Agreement. The Servicer shall forward to the Custodian original documents relating to evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Mortgage Loans that are not delivered to Servicer shall provide the TrusteeCustodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall provide the original of any document submitted for recordation or to a copy of such document certified by the appropriate Custodian on behalf public recording office to be a true and complete copy of the Trustee, are and shall be held by or on behalf original within 270 days of the Seller, the Depositor or the Master Servicer, as the case may be, in trust its submission for the benefit of the Trustee on behalf of the Certificateholdersrecordation. In the event that any the Servicer cannot provide a copy of such original document certified by the public recording office within such 270 day period, the Servicer shall deliver to the Custodian, within such 270 day period, an Officer's Certificate of the Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation, if known, and (D) specify the date the applicable recorded document is required pursuant expected to be delivered to the terms Custodian, and, upon receipt of this Section a copy of such document certified by the public recording office, the Servicer shall immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Servicer shall deliver a copy of such document certified by an officer of the Servicer to be a part true and complete copy of a Mortgage File, such document shall be delivered promptly the original to the Trustee, or Custodian. Notwithstanding anything to the appropriate Custodian on behalf of contrary in this Agreement, within five Business Days after the Trustee. Any such original document delivered to or held by Closing Date, the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.either:
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Indymac Residential Mortgage-Backed Trust, Series 2006-L1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase AgreementAssignment Agreements, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wf1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey in trust to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the (i) each Mortgage Loans Loan identified on the Mortgage Loan Schedule, including the related Cut-off Date Principal Balance, all interest accruing thereon on and after the Cut-off Date and all collections in respect of interest and principal due after the Cut-off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) the rights of the Depositor under the Mortgage Loan Purchase Agreement, (v) payments made to the Supplemental Interest Trust Trustee by the Swap Provider and the Swap Account, (vi) payments made to the Cap Trustee by the Interest Rate Cap Provider and the Cap Account, (vii) the right to receive any amounts payable under the Basis Risk Cap Agreement and Basis Risk Cap Agreement and (viii) all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund and (vii) all proceeds of any of the Swap Administrator under the Swap Administration Agreement and the Swap Accountforegoing. Such assignment includes all interest and principal received due and collected by the Depositor or the Master Servicer on or after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameLoans. In connection with such transfer and assignment, the Depositor Depositor, does hereby deliver to, and deposit withwith the Custodian on behalf of the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assignedassigned (with respect to each Mortgage Loan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed either (A) in blank, without recourse, blank or (B) in the following form: "“Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreementTrustee, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, ” or with respect to any lost Mortgage Note, an original Lost Note AffidavitAffidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related mortgage note; provided provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]1.00% of the Pool Balance as of the Cut-off Date;
(ii) the original MortgageMortgage (noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan), with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) unless the Mortgage Loan is a MERS® loan, an original Assignment Assignment, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blankblank or (B) to “Deutsche Bank National Trust Company, as Trustee, without recourse”;
(iv) the an original recorded of any intervening Assignment or Assignments assignment of Mortgage showing a complete chain of assignment from the originator assignments (or to the Person assigning MERS if the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening AssignmentsLoan is a MERS loan;
(v) the original or a certified copy of lender’s title insurance policy; and
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
. The Depositor herewith also delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement. The Trustee agrees to execute and deliver (vior cause the Custodian to execute and deliver) and to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally Mortgage Note (with any exceptions noted), substantially in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow companyform attached as Exhibit F-3 hereto. If any of the documents referred to in Sections Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the TrusteeTrustee no later than the Closing Date, of a copy of each such document certified by the Originator or the Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the OriginatorOriginator or the Seller, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's ’s title insurance policy policy, or a certified copy thereof, was not delivered pursuant to Section 2.01(vi2.01(v) above, the Depositor shall deliver or cause to be delivered to the Custodian on behalf of the Trustee, the original or a copy of a written commitment or interim binder or preliminary report of title issued by the title insurance or escrow company, with the original or a certified copy thereof to be delivered to the appropriate Custodian on behalf of the Trustee, promptly after upon receipt thereof, the original lender's title insurance policy. The Servicer or the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Trustee (in its capacity as Selleror the Custodian on behalf of the Trustee) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between notify the Master Servicer and the Trustee, following Servicer shall enforce the later obligations of (i) the Closing Date, (ii) the date on which the Seller receives under the Assignment from Mortgage Loan Purchase Agreement to cure such defect or deliver such missing document to the Trustee or the Custodian and (iii) within 120 days. If the date of receipt by Seller does not cure such defect or deliver such missing document within such time period, the Master Servicer shall enforce the obligations of the recording information Seller to either repurchase or substitute for a such Mortgage Loan in accordance with Section 2.03. In connection with the foregoing, it is understood that the Custodian on behalf of the Trustee shall have no duty to discover any such defects except in the course of performing its review of the Mortgage Files to the extent set forth herein. Except with respect to any Mortgage Loan for which MERS is identified on the Mortgage) submit or , the Trustee shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to cause the Assignments which were delivered in blank to be submitted for recording, at no expense completed and to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment record all Assignments referred to in Section 2.01(iii) above hereof and, to the extent necessary, in Section 2.01(iv) hereof and to deliver such assignments for recording within 180 days of the following form: "[_], as Trustee under the applicable agreement." Closing Date. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Trustee shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to promptly prepare or cause to be prepared have a substitute Assignment prepared or cure or cause to be cured have such defectdefect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless the Trustee (or the Custodian on behalf of the Trustee) and the Depositor receive notice that such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided furtherprovided, however, each Assignment Assignment, except with respect to any Mortgage Loan for which MERS is identified on the Mortgage, shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master a Servicer Termination TestEvent of Termination, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and hereof, (v) if upon receipt of notice from the Seller is not the Master Servicer and with respect to any one Assignment or MortgageServicer, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage, (vi) upon receipt of notice from the Servicer, any Mortgage Loan that is 90 days or more Delinquent and such recordation would be necessary to facilitate conversion of the Mortgaged Property in accordance with Section 3.16 and (vii) reasonable direction by the NIMS Insurer. In the event of (i) through (vii) set forth in the immediately preceding sentence, the Trustee shall enforce the obligations of the Seller to deliver such Assignments for recording as provided above, promptly and in any event within 30 days following receipt of notice by the Seller. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee (if it reasonably believes it will be reimbursed) and the Trustee shall be reimbursed for such expenses by the Trust. The Servicer shall forward to the Custodian original documents evidencing an assumption, modification, consolidation or extension of any Mortgage Loan entered into in accordance with this Agreement within two weeks of their execution; provided, however, that the Servicer shall provide the Custodian with a certified true copy of any such document submitted for recordation within two weeks of its execution, and shall be reimbursable to provide the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, of any document submitted for recordation or to a copy of such document certified by the appropriate Custodian on behalf public recording office to be a true and complete copy of the Trustee, are and shall be held by or on behalf original within 365 days of the Seller, the Depositor or the Master Servicer, as the case may be, in trust its submission for the benefit of the Trustee on behalf of the Certificateholdersrecordation. In the event that any the Servicer cannot provide a copy of such original document certified by the public recording office within such 365 day period, the Servicer shall deliver to the Custodian, within such 365 day period, an Officers’ Certificate of the Servicer which shall (A) identify the recorded document, (B) state that the recorded document has not been delivered to the Custodian due solely to a delay caused by the public recording office, (C) state the amount of time generally required by the applicable recording office to record and return a document submitted for recordation, if known and (D) specify the date the applicable recorded document is required pursuant expected to be delivered to the terms Custodian, and, upon receipt of this Section a copy of such document certified by the public recording office, the Servicer shall immediately deliver such document to the Custodian. In the event the appropriate public recording office will not certify as to the accuracy of such document, the Servicer shall deliver a copy of such document certified by an officer of the Servicer to be a part true and complete copy of a the original to the Custodian. The Depositor shall deliver or cause the Seller to deliver (by regular mail) to the Servicer copies of all trailing documents required to be included in the Mortgage FileFile at the same time the originals or certified copies thereof are delivered to the Custodian, such document shall be delivered promptly documents including but not limited to the Trusteemortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. Except as provided in Section 3.17, the Servicer shall not be responsible for any Custodian fees or to the appropriate Custodian on behalf of the Trustee. Any other costs incurred in obtaining such original document delivered to documents or held by the Depositor that is not required for any such costs it may incur in connection with performing its obligations pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master ServicerAgreement. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Interest Rate Swap Agreement (in its capacity as Supplemental Interest Trust Trustee); the Basis Risk Cap Agreement (in its capacity as Trustee) and the Interest Rate Cap Agreement (in its capacity as Cap Trustee). The Depositor, the Servicer and the Holders of the Class A and Mezzanine Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall execute, deliver and perform its obligations under the Interest Rate Swap Agreement (in its capacity as Supplemental Interest Trust Trustee), the Basis Risk Cap Agreement (in its capacity as Trustee) and the Interest Rate Cap Agreement (in its capacity as Cap Trustee) and shall do so solely in its capacity as Trustee, Cap Trustee or Supplemental Interest Trust Trustee, as the case may be, and not in its individual capacity. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trustee shall apply to the Trustee’s execution of the Interest Rate Swap Agreement, the Basis Risk Cap Agreement and the Interest Rate Cap Agreement and the performance of its duties and satisfaction of its obligations thereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (First Franklin Mortgage Loan Trust 2006-Ff8)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to (i) the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made the Trust Fund for the benefit of the Certificateholders and (ii) the rights with respect to the Servicing Agreement as assigned to the Trustee on behalf of the Certificateholders by the Swap Administrator under the Swap Administration Agreement Assignment, Assumption and the Swap AccountRecognition Agreement. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has caused the Seller with respect to each Mortgage Loan, to deliver to, and deposit withto or at the direction of the Trustee, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "instruments: With respect to each Mortgage File"):Loan:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay recourse to the order of [_]the Trustee or in blank, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator original payee thereof to the Person so endorsing it to the TrusteeTrustee or in blank or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded;
(iii) an assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage in blank or to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) and otherwise in recordable form;
(iv) originals of any intervening assignments of the Mortgage, with evidence of recording thereon, and or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy, copy of such original intervening assignment certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) Seller or the public recording office in which such original unrecorded intervening Assignmentsassignment has been recorded;
(v) the original policy of title insurance (or copies of each assumption, modification, written assurance or substitution agreementa preliminary title report commitment for title insurance, if anythe policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete correct copy of the original that was submitted for recording and (2) any assumption, modification, consolidation or substitution agreement, if such copy is certified by the Originatorany, delivery relating to the Trustee, or to Mortgage Loan. Within 30 days after the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) aboveClosing Date, the Depositor shall deliver complete or cause to be delivered completed the Assignments of Mortgage in the name of “U.S. Bank National Association, as trustee under the Agreement relating to the Trustee, TBW Mortgage-Backed Trust Series 2006-5” (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver prepare or cause to be delivered to prepared new forms of Assignment of Mortgage so completed in the Trustee, or to the appropriate Custodian on behalf name of the Trustee) for each Mortgage Property in a state, promptly upon receipt thereof any other original documents constituting a part if any, which is specifically excluded from the Opinion of a Mortgage File received with respect Counsel delivered by the Depositor to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Trustee and the TrusteeCustodian, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to each such assignment shall be submitted for recording, at no expense to the Trust Fund or the Trustee, recorded in the appropriate public office for real property records, each and returned to the Custodian, at no expense to the Trustee or the Custodian. The Seller is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to or at the direction of the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Custodian as agent for the Trustee pursuant to clause (ii) above; and (b) either the original Assignment referred or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in Sections 2.01(iii) the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Custodian as agent for the Trustee pursuant to clause (iv) above and shall execute each original Assignment referred above. However, pursuant to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect thereinMortgage Loan Purchase Agreement, the Master Servicer (in its capacity as Seller) shall promptly prepare or Seller need not cause to be prepared a substitute Assignment or cure or cause to be cured such defectrecorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the case may beSeller to the Trustee, the Custodian and thereafter cause each the Rating Agencies, the recordation of such Assignment assignment is not necessary to be duly recorded. Notwithstanding protect the foregoingTrustee’s interest in the related Mortgage Loan; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund Issuing Entity, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testan Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid deemed to have satisfied its obligations hereunder upon delivery to the Custodian as agent for the Trustee of a copy of such Mortgage certified by the Trustee public recording office to be a true and shall be reimbursable complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Custodian as agent for the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trusteebecause of any defect therein, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, is required, as described in trust the Mortgage Loan Purchase Agreement, to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller, as applicable, shall cause such Assignment to be recorded in accordance with this section. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller’s own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee on behalf and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. Except as may otherwise expressly be provided herein, none of the Depositor, the Custodian, the Master Servicer, or the Trustee shall (and the Master Servicer shall ensure that no Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders. In It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Distribution Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (TBW Mortgage-Backed Trust Series 2006-5)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contract. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as SellerOriginator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as SellerOriginator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Originator) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Originator is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mortgage Sec as-BCKD Pass-THR Cert Ser 2003-7)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: "Seller “Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse” or to “Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of BNP Paribas Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power “[Name of attorneyTrustee], as trustee” or to “[Name of Trustee], as trustee for holders of BNP Paribas Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_”, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender’s title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller’s Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller’s Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (BNP Paribas Mortgage Securities LLC)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the (i) each Mortgage Loans Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest accruing thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor under the Mortgage Loan Purchase Agreement, and (vi) all other assets included or to be included in REMIC Ithe Trust Fund; provided, payments made however, so long as the Servicer is an FHA Approved Mortgagee, the Commissioner of HUD shall have no obligation to recognize or deal with any person other than the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountServicer with respect to FHA Insurance. Such assignment includes all interest and principal received by due to the Depositor or the Master Servicer on or after the Cut-Off Date with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameLoans. In connection with such transfer and assignment, the Depositor Seller, on behalf of the Depositor, does hereby deliver to, and deposit withwith the Trustee, or its designated agent (the Trustee "Custodian"), the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) so transferred and assigned:
(i) the original Mortgage Note, endorsed either (A) in blank, without recourse, blank or (B) in the following form: "Pay to the order of [_]The Chase Manhattan Bank, as Trustee under the applicable agreementPooling and Servicing Agreement, dated as of November 1, 2000, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manxxxxxx Bank, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2000-CB4, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee", or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only together with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% a copy of the Pool Balance as of the Cut-off Daterelated Mortgage Note;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blankblank or (B) to "The Chase Manhattan Bank, as Trustee under the Pooling and Servicing Agreement, dated as of November 1, 2000, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manxxxxxx Bank, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2000-CB4, without recourse";
(iv) the an original recorded copy of any intervening Assignment or Assignments assignment of Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentsassignments;
(v) the original or a certified copy of lender's title insurance policy;
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(vii) for each FHA Loan, the original Mortgage Insurance Certificate;
(viii) for each VA Loan, the original Loan Guaranty Certificate;
(ix) [Reserved]; and
(vix) the original, or a certified copy of the, Primary Insurance Policy. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally Mortgage Note (with any exceptions noted), substantially in the jurisdiction where form attached as Exhibit F-3 hereto. The Seller or Servicer shall within 90 days following the Mortgaged Property Closing Date, with respect to each Mortgage Loan that is located, together with all endorsements or riders which were issued with or subsequent subject to the issuance provisions of the Homeownership and Equity Protection Act of 1994 place a legend on the original Mortgage Note indicating the satisfaction of the provisions of such policyAct and the regulations issued thereunder, to the effect that the Mortgage Loan is subject to special truth in lending rules. The Servicer shall promptly (and in no event later than thirty days following the Closing Date) submit or cause to be submitted for recording, at the Servicer's expense and at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such original title policy Assignment is unavailablelost or returned unrecorded because of a defect therein, the Seller shall promptly prepare or cause to be prepared a written commitment substitute Assignment or uniform binder cure or preliminary report of title issued by cause to be cured such defect, as the title insurance or escrow companycase may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of no later than the TrusteeClosing Date, of a copy of each such document certified by the Originator Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the OriginatorSeller, delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of the TrusteeCustodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor The Seller shall deliver or cause to be delivered to the Trustee, Trustee or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall promptly (and in no event later than thirty (30) Business Days, subject have 120 days to extension upon a mutual agreement between the Master Servicer and the Trustee, cure such defect or 150 days following the later of (i) the Closing Date, (ii) in the date on which case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller receives does not cure such defect or deliver such missing document within such time period, the Assignment from Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Seller shall cause the Custodian and (iii) the date Assignments of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause Mortgage which were delivered in blank to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above completed and shall execute each original Assignment cause all Assignments referred to in Section 2.01(iii) above hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; provided, however, the Seller need not cause to be recorded any Assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's interest in the following form: "[_]related Mortgage Loan. The Seller shall be required to deliver such assignments for recording within 30 days of the Closing Date. The Seller shall furnish the Trustee, as Trustee under the applicable agreement." or its designated agent, with a copy of each assignment of Mortgage submitted for recording. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared have a substitute Assignment prepared or cure or cause to be cured have such defectdefect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Seller shall cause to be completed such original document is required pursuant endorsements "Pay to the terms order of this Section to be a part The Chase Manhattan Bank, as Trustee under the Pooling and Servicing Agreement, dated as of a Mortgage FileNovember 1, such document shall be delivered promptly 2000, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manhattan Bank, C-BASS Mortxxxx Loan Asset-Backed Certificates, Series 2000-CB4, without recourse." The Depositor herewith delivers to the Trustee, or to the appropriate Custodian on behalf Trustee an executed copy of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsLoan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Funding Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The Depositor does hereby establish, pursuant to the further provisions of this Agreement and the laws of the State of New York, an express trust (the "Trust") and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement. The parties hereto acknowledge and agree that it is the policy and intention of the Trust to acquire only Mortgage Loans meeting the requirements set forth in this Agreement. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreements (including, without limitation, the Depositor's right in the representations and warranties and the repurchase obligations of the Originator and the Seller contained therein), any payments made under the Cap Contract and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by or on behalf of the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase AgreementAgreements, and the Trustee, Trustee on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "Mortgage FileMORTGAGE FILE"):
(i) the original Mortgage Note, with all riders, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]_____, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]___% of the Pool Balance as of the Cut-off Date;
(ii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, the original Mortgage, with all riders, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, an original Assignment assigned in blank, without recourse;
(iv) in the case of each Mortgage Loan that is not a MERS Mortgage Loan, the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. In addition, in connection with the assignment of any MERS Mortgage Loan, the Depositor agrees that it will cause, at its expense, the MERS(R) System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files the information required by the MERS(R) System to identify the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not, alter the information referenced in this paragraph with respect to any related Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Originator shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Originator and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Originator of the recording information for a Mortgage) , submit or cause to be submitted for recording, at no expense to the Trust Fund Fund, the Servicer or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]______", as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Originator shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording [(except with respect to any Mortgage Loan located in Maryland) )] unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller Originator in the manner described above, at no expense to the Trust Fund Fund, the Servicer or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and hereof, (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related MortgageMortgage and (vi) with respect to any Assignments, the payment in full of the related Mortgage Note. Notwithstanding the foregoing, if the Master Servicer Originator is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. In the event that any Assignments are not recorded or are improperly recorded, the Servicer shall have no liability for its failure to receive or act on notices not received relating to such failure to record or the improper recording of such Assignments. The Originator shall be required to forward all notices regarding Assignments it receives to the Servicer. In the event that the Trust Fund or the Servicer suffers a loss directly related to the Originator's failure to forward such notices, the Originator shall be required to reimburse and indemnify the Servicer and/or the Trust Fund for such loss. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Originator, the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase AgreementAgreement and delivers to the Paying Agent $1,000 for deposit into the Net WAC Rate Carryover Reserve Account, and the Trustee, Trustee and the Paying Agent acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigneda Custodian on its behalf, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) with respect to each Mortgage Loan so transferred and assigned:
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) unless the Mortgage Loan is registered on the MERS(R) System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS(R) System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening AssignmentsMortgage Loan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if anya copy thereof; and
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender's recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney's opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Master Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Seller shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Servicer, at the expense of the Seller) , shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Master Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Master Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeMaster Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Master Servicer Event of Termination, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Master Servicer and the Master Servicer shall be reimbursable reimbursed for such expenses by the Trust as set forth herein. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (I)(i) or (II)(i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that Wherever it is not intended provided in this Section 2.01 that any mortgage loan document, evidence or information relating to a Mortgage Loan be included in delivered or supplied to the Trust that is Trustee, the Depositor shall do so by delivery thereof to the Trustee or a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsCustodian on behalf of the Trustee.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreements, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the any Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameAgreements. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(ia) the original Mortgage Note, endorsed in one of the following forms: (i) in blank, without recourse, or in the following form: (ii) "Pay to the order of [_]Norwest Bank Minnesota, National Association, as Trustee under the applicable agreementTrustee, without recourse," (iii) "Pay to the order of Norwest Bank Minnesota, National Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-LB3, without recourse" or (iv) "Pay to the order of Norwest Bank Minnesota, National Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1997-LB1, without recourse, in each case with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to in the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; form as provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Dateabove;
(iib) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iiic) an original Assignment assigned of the Mortgage executed in one of the following forms: (i) in blank, without recourse(ii) "Norwest Bank Minnesota, National Association, as Trustee", (iii) "Norwest Bank Minnesota, National Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-LB3" or (iv) "Norwest Bank Minnesota, National Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1997-LB1";
(ivd) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee or in blank as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentsc);
(ve) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vif) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The related Master Servicer, in its capacity as an Originator, (or in the case of the Mortgage Loans serviced by Ocwen, the Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the related Master Servicer or the Seller, as the case may be, and the Trustee, following the later of the Closing Date and the date of receipt by such Master Servicer or the Seller, as the case may be, of the recording information for a Mortgage, including the unrecorded original Assignment) submit or cause to be submitted for recording, at no expense to the Trust Fund, the Trustee or the Depositor, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the related Master Servicer, in its capacity as an Originator, (or in the case of the Mortgage Loans serviced by Option, the Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the related Originator or the Seller, as the case may be, in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorrelated Originator or the Seller, as the case may be, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of such Originator, the Seller, the Depositor or the such Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the related Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Solomon Bros Mort Sec Vii Inc Fl Rt MRT Ps THR Cert 1999 3)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreements, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay recourse to the order of [_]"Bankers Trust Company, as Trustee under the applicable agreement, without recourse,trustee" with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Mortgage certified by the Seller to be a true and complete copy of the original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of the Mortgage in recordable form to "Bankers Trust Company, as trustee" or to "Bankers Trust Company, as trustee for the holders of DLJ Mortgage Acceptance Corp. Mortgage Pass-Through Certificates";
(iv) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued and if the Mortgage Loan was funded through a title insurance company pursuant to escrow or closing instructions precluding the title insurance company or other comparable escrow or closing agent from funding until it is prepared to issue the required title insurance coverage, a copy of such escrow or closing instructions;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the preliminary title report (or equivalent thereof) on the Mortgage Property;
(viii) if any of the documents or instruments referred to above was executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original; and
(ix) the notice to assignees that the Mortgage Loan is subject to special truth in lending rules, to the extent required by applicable law. The Seller is obligated pursuant to each Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof.
01. While such Assignment to be recorded is being recorded, the Trustee shall retain a photocopy of such Assignment. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding The Seller is required under each Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or cause to be delivered to the foregoingTrustee within 120 days of the Closing Date, however, for administrative convenience and facilitation of servicing and to reduce closing costsor such other date as set forth in such Mortgage Loan Purchase Agreement, the Assignments shall not be required to be submitted for recording (except original or a photocopy of the title insurance policy with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency each of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable Mortgage Loans assigned to the Trustee as an Extraordinary Trust Fund Expensepursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by the Seller to the Depositor pursuant the related Mortgage Loan Purchase Agreements or granted by DLJMCI to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (DLJ Mortgage Acceptance Corp Mort Pass THR Cert Ser 1995 Q8)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage 57 Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the OriginatorSeller, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Seller) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Backed Ser 2003-10)
Conveyance of Mortgage Loans. The Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of the Seller in and to the Mortgage Loans, including all interest and principal received and receivable by the Seller on or with respect to the Mortgage Loans on and after the Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Seller as an Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the Mortgage Loans prior to the Cut-off Date and interest accruing prior to the Cut-off Date. The Seller confirms that, concurrently with such transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. The Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery hereof, does hereby transfersells, assigntransfers, set assigns, sets over and otherwise convey conveys to the Trustee without recourse for the use and benefit of the Certificateholders Certificateholders, without recourse, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameTrust Fund. In connection with any such transfer and assignment, the Depositor does hereby has delivered to, and deposited with, the Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliver to, and deposit with, the Trustee within thirty (30) days following the Closing Date) (except as provided in clause (vi) below) for the benefit of the Certificateholders, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original Mortgage Note, endorsed in blankby the Seller or the originator of such Mortgage Loan, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, ___________________ without recourse," ", with all prior and intervening endorsements showing that show a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off DateSeller;
(ii) the original recorded Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blanka duly executed assignment of the Mortgage to "The Bank of New York, a New York banking corporation, as trustee under the Pooling and Servicing Agreement dated as of May 1, 1999, CWABS, Inc., Asset-Backed Certificates, Series 1999-2, without recourse" (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the assignment of and transfer to the assignee thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded intervening Assignment assignment or Assignments showing a complete chain assignments of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentstogether with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original or duplicate original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedand all riders thereto or, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailablehas not been received from the insurer, a written commitment such original or uniform binder or preliminary report of duplicate original lender's title issued by the title insurance or escrow company. If any policy and all riders thereto shall be delivered within one year of the documents referred to Closing Date. In the event that in Sections 2.01(iiconnection with any Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all interim recorded assignments of the Mortgage satisfying the requirements of clause (ii), (iii) or (iv) above has as of concurrently with the Closing Date been submitted for recording but either (x) has not been returned from execution and delivery hereof, the applicable public recording office Seller shall deliver or (y) has been lost or such public recording office has retained cause to be delivered to the original Trustee a true copy of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy Mortgage and of each such document undelivered interim assignment of the Mortgage each certified by the Originator in Seller, the applicable title company, escrow agent or attorney, or the originator of such Mortgage, as the case of (x) above or the applicable public recording office in the case of (y) above may be, to be a true and complete copy of the original Mortgage or assignment of Mortgage submitted for recording. The Seller shall promptly deliver or cause to be delivered to the Trustee such original Mortgage and such assignment or assignments with evidence of recording indicated thereon upon receipt thereof from the public recording official, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery be made later than 270 days following the Closing Date; provided that was in the event that by such date the Seller is unable to deliver or cause to be delivered each Mortgage and each interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each interim assignment, because the related Mortgage has not been returned by the appropriate recording office, the Seller shall deliver or cause to be delivered such documents to the Trustee as promptly as possible upon receipt thereof. If the public recording office in which a Mortgage or interim assignment thereof is recorded retains the original of such Mortgage or assignment, a copy of the original Mortgage or assignment so retained, with evidence of recording thereon, certified to be true and complete by such recording office, shall satisfy the Seller's obligations in this Section 2.01. If any document submitted for recording and pursuant to this Agreement is (2a) if such copy is certified lost prior to recording or rejected by the Originatorapplicable recording office, delivery the Seller shall immediately prepare or cause to be prepared a substitute and submit it for recording, and shall deliver copies and originals thereof in accordance with the foregoing or (b) lost after recording, the Seller shall deliver to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or Trustee a copy of such document certified by the applicable public recording office to be a true and complete copy of the originaloriginal recorded document. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor The Seller shall deliver promptly forward or cause to be delivered forwarded to the Trustee, or Trustee (a) from time to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any time additional original documents evidencing an assumption or modification of a Mortgage Loan and (b) any other documents required to be delivered by the Depositor or the Master Servicer to the Trustee within the time periods specified in this Section 2.01. With respect to each Mortgage Loan as to which the related Mortgaged Property and Mortgage File are located in (a) the State of California or (b) any other jurisdiction under the laws of which the recordation of the assignment specified in clause (iii) above is not necessary to protect the Trustee's and the Certificateholders, interest in the related Mortgage Loan, as evidenced by an Opinion of Counsel, delivered by the Seller to the Trustee and a copy to the Rating Agencies, in lieu of recording the assignment specified in clause (iii) above, the Seller may deliver an unrecorded assignment in blank, in form otherwise suitable for recording to the Trustee; provided that if the related Mortgage has not been returned from the applicable public recording office, such assignment, or any copy thereof, of the Mortgage may exclude the information to be provided by the recording office. As to any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer procedures of the recording information for a Mortgage) submit or cause to preceding sentence shall be submitted for recording, at no expense to applicable only so long as the Trust Fund or the Trustee, related Mortgage File is maintained in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above possession of the Trustee in the following form: "[_], as Trustee under the applicable agreement." State or jurisdiction described in such sentence. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master ServicerServicer gives written notice to the Trustee that recording is required to protect the right, as the case may be, in trust for the benefit title and interest of the Trustee on behalf of the CertificateholdersCertificateholders in and to any Mortgage Loan, (ii) a court recharacterizes the sale of the Mortgage Loans as a financing, or (iii) as a result of any change in or amendment to the laws of the State or jurisdiction described in the first sentence of this paragraph or any applicable political subdivision thereof, or any change in official position regarding application or interpretation of such laws, including a holding by a court of competent jurisdiction, such recording is so required, the Trustee shall complete the assignment in the manner specified in clause (iii) of the second paragraph of this Section 2.01 and the Seller shall submit or cause to be submitted for recording as specified above or, should the Seller fail to perform such obligations, the Trustee shall cause the Master Servicer, at the Master Servicer's expense, to cause each such previously unrecorded assignment to be submitted for recording as specified above. In the event a Mortgage File is released to the Master Servicer as a result of the Master Servicer's having completed a Request for Release in the form of Exhibit M, the Trustee shall complete the assignment of the related Mortgage in the manner specified in clause (iii) of the second paragraph of this Section 2.01. So long as the Trustee maintains an office in the State of California, the Trustee shall maintain possession of and not remove or attempt to remove from the State of California any of the Mortgage Files as to which the related Mortgaged Property is located in such State. In the event that any such original document is required pursuant the Seller fails to the terms of this Section to be a part record an assignment of a Mortgage FileLoan as herein provided within 90 days of notice of an event set forth in clause (i), (ii) or (iii) of the above paragraph, the Master Servicer shall prepare and, if required hereunder, file such document shall be delivered promptly to the Trustee, or to assignments for recordation in the appropriate Custodian on behalf of the Trusteereal property or other records office. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to The Seller hereby appoints the Master Servicer. The parties hereto understand Servicer (and agree that it is not intended that any mortgage loan be included successor servicer hereunder) as its attorney-in-fact with full power and authority acting in its stead for the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawspurpose of such preparation, execution and filing.
Appears in 1 contract
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date or Subsequent Cut-off Date, as applicable). The Depositor herewith delivers Master Servicer hereby acknowledges the receipt by it of cash in an amount equal to $362,467.50 (the "Special Deposit"), representing interest at the Mortgage Rate, for the calendar month of October 2001, for those Mortgage Loans which do not have Monthly Payments due on November 1, 2001. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Available Distribution Amount for the Distribution Date in November 2001. The Trustee an executed copy hereby acknowledges the receipt by it of the Mortgage Loan Purchase Agreement, Pre-Funded Amount and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameInterest Coverage Amount. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement, with respect to each Initial Mortgage Loan, and as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to each Subsequent Mortgage Loan, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order Bankers Trust Company of [_]California, N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 2001-7" with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyMortgage or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Seller or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(2iii) if such copy is certified by a duly executed original Assignment of the OriginatorMortgage, delivery without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2001-7";
(iv) the original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, or Person assigning it to the appropriate Custodian on behalf of Trustee or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Seller to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy; and
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Seller is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Initial Mortgage Loans, and will be obligated as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans, to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was not delivered to the Trustee pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement ( or the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans), the Depositor shall deliver or Seller need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, 's interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid by the Trustee and shall be reimbursable deemed to have satisfied its obligations hereunder upon delivery to the 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 Trustee because of any defect therein, the Seller is required, as an Extraordinary Trust Fund Expensedescribed in the Mortgage Loan Purchase Agreement (or the Subsequent Mortgage Loan Purchase Agreement, as applicable), to 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 section. The Seller is required as described in the Mortgage Loan Purchase Agreement, with respect to the Initial Mortgage Loans, and will be required as described in the Subsequent Mortgage Loan Purchase Agreement, with respect to the Subsequent Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date, with respect to the Initial Mortgage Loans, or the Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans, the original or a photocopy of the title insurance policy with respect to each such Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the REMIC 1 Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the REMIC 1 Regular Interests by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans and the REMIC 1 Regular Interests are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the REMIC 1 Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of Option One Mortgage Acceptance Corporation, Mortgage Pass-Through Certificates, Series 199_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of Option One Mortgage Acceptance Corporation, Mortgage PassThrough Certificates, Series 199_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by the Seller to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Option One Mortgage Acceptance Corp)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Sponsor to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: "Sponsor “Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse” or to “Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of Alliance Bancorp., Mortgage Pass-Through Certificates, Series 200_-_, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Sponsor to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Sponsor, without recourse, to a power “[Name of attorneyTrustee], as trustee” or to “[Name of Trustee], as trustee for holders of Alliance Bancorp., Mortgage Pass-Through Certificates, Series 200_-_”, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Sponsor to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender’s title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Sponsor (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Sponsor is obligated pursuant to the Sponsor’s Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Sponsor, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Sponsor was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySponsor, or in the event such original title policy is unavailablecannot be delivered by the Sponsor, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Sponsor were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Sponsor shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Sponsor is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Sponsor is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Sponsor’s Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSponsor to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Sponsor’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Sponsor] to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ab Mortgage Securities Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee and the Trust Administrator an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of such Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of such Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the related Originator or an Affiliate of such Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (v) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In the event an Assignment of Mortgage is not recorded with respect to a Mortgage Loan, neither the Trustee nor the Servicer will have any obligation for its failure to receive or act on notices with respect to such Mortgage Loan that the Trustee or the Servicer would have received had such Assignment of Mortgage been recorded. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. The Depositor shall deliver or cause the Sponsor to deliver to the Servicer copies of all trailing documents required to be included in the servicing file at the same time the originals or certified copies thereof are delivered to the Trustee or Custodian, such documents including but not limited to the mortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. The Servicer shall not be responsible for any custodian fees or other costs incurred in obtaining such documents and the Depositor shall cause the Servicer to be reimbursed for any such costs it may incur in connection with performing its obligations under this Agreement. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Amc1)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby transfersells, assigntransfers, set assigns, sets over and otherwise convey conveys to the Trustee without recourse for the benefit of the Certificateholders Certificateholders, without recourse, all the right, title and interest of the Depositor in and to the Trust Fund together with the Depositor's right to require the Originator to cure any breach of a representation or warranty made herein by the Originator or to substitute or repurchase for any affected Mortgage Loan in accordance herewith. With respect to any Mortgage Loan that does not have a first payment date on or before the Due Date in the month of the first Distribution Date, including any security the Depositor shall, or shall cause PWRES to, deposit into the Distribution Account on or before the Distribution Account Deposit Date relating to the first Distribution Date, an amount equal to one month's interest therein at the related Adjusted Mortgage Rate on the Cut-off Date Principal Balance of such Mortgage Loan.
(b) In connection with the transfer and assignment set forth in clause (a) above, the Depositor has delivered or caused to be delivered to the Trustee for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Certificateholders the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(iA) the original Mortgage Note, Note endorsed by manual or facsimile signature in blank, without recourse, or blank in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, __________ without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person endorsing the Mortgage Note (each such endorsement being sufficient to transfer all right, title and interest of the party so endorsing endorsing, as noteholder or assignee thereof, in and to the Trustee, or that Mortgage Note); or
(B) with respect to any lost Lost Mortgage Note, an original Lost Note Affidavit; provided however, a lost note affidavit from the Originator stating that such substitutions of Lost Note Affidavits for the original Mortgage Notes may occur only Note was lost or destroyed, together with respect to a copy of such Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off DateNote;
(ii) except as provided below, the original Mortgage, with evidence recorded Mortgage or a copy of recording thereon, and a copy, such Mortgage certified by the appropriate recording office, Originator as being a true and complete copy of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonMortgage;
(iii) an original Assignment assigned a duly executed assignment of the Mortgage (which may be included in blanka blanket assignment or assignments), without recoursetogether with, except as provided below, all interim recorded assignments of such mortgage (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the assignment of and transfer to the assignee thereof, under the Mortgage to which the assignment relates); provided that, if the related Mortgage has not been returned from the applicable public recording office, such assignment of the Mortgage may exclude the information to be provided by the recording office;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(v) except as provided below, the original or duplicate original lender's title policy and all riders thereto; and
(vi) in the case of a Cooperative Loan, the originals of the following documents or instruments:
(a) The Coop Shares, together with a stock power in blank;
(b) The executed Security Agreement;
(c) The executed Proprietary Lease;
(d) The executed Recognition Agreement;
(e) The executed assignment of Recognition Agreement;
(f) The executed UCC-1 financing statement with evidence of recording thereon which have been filed in all places required to perfect the Originator's interest in the Coop Shares and the Proprietary Lease; and
(g) Executed UCC-3 financing statements or other appropriate UCC financing statements required by state law, evidencing a complete and unbroken line from the mortgagee to the Trustee with evidence of recording thereon (or in a form suitable for recordation). In the event that in connection with any Mortgage Loan the Depositor cannot deliver (a) the original recorded Mortgage, (b) all interim recorded assignments or (c) the lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, (together with all endorsements or riders which were issued with or subsequent to thereto) satisfying the issuance requirements of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(iiclause (ii), (iii) or (ivv) above has as of above, respectively, concurrently with the Closing Date been submitted for recording but either (x) has execution and delivery hereof because such document or documents have not been returned from the applicable public recording office in the case of clause (ii) or (yiii) above, or because the title policy has not been lost delivered to either the Servicer or such public recording office has retained the original Depositor by the applicable title insurer in the case of such documentclause (v) above, the obligations of the Depositor to shall promptly deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of clause (xii) above or (iii) above, such original Mortgage or such interim assignment, as the applicable case may be, with evidence of recording indicated thereon upon receipt thereof from the public recording office office, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery of the original Mortgage and each such interim assignment or a copy thereof, certified, if appropriate, by the relevant recording office, be made later than one year following the Closing Date, or, in the case of clause (yv) above above, no later than 120 days following the Closing Date; provided, however, in the event the Depositor is unable to deliver by such date each Mortgage and each such interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each such interim assignment, because the related Mortgage has not been returned by the appropriate recording office, the Depositor shall deliver such documents to the Trustee as promptly as possible upon receipt thereof and, in any event, within 720 days following the Closing Date. The Depositor shall forward or cause to be forwarded to the Trustee (a) from time to time additional original documents evidencing an assumption or modification of a true Mortgage Loan and complete (b) any other documents required to be delivered by the Depositor or the Servicer to the Trustee. In the event that the original Mortgage is not delivered and in connection with the payment in full of the related Mortgage Loan and the public recording office requires the presentation of a "lost instruments affidavit and indemnity" or any equivalent document, because only a copy of the original that was submitted for recording Mortgage can be delivered with the instrument of satisfaction or reconveyance, the Servicer shall execute and (2) if deliver or cause to be executed and delivered such copy is certified by the Originator, delivery a document to the Trusteepublic recording office. In the case where a public recording office retains the original recorded Mortgage or in the case where a Mortgage is lost after recordation in a public recording office, or the Originator shall deliver to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or Trustee a copy of such document Mortgage certified by the applicable such public recording office to be a true and complete copy of the originaloriginal recorded Mortgage. If the original lender's title insurance policy was not delivered pursuant As promptly as practicable subsequent to Section 2.01(vi) abovesuch transfer and assignment, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than any event, within thirty (30) Business Daysdays thereafter, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of shall (i) cause the Closing DateTrustee to affix the Trustee's name to each assignment of Mortgage, as the assignee thereof, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause such assignment to be submitted in proper form for recording, at no expense to the Trust Fund or the Trustee, recording in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) records and (iviii) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted delivered for recording (in the appropriate public office for real property records the assignments of the Mortgages to the Trustee, except that, with respect to any assignments of Mortgage as to which the Servicer has not received the information required to prepare such assignment in recordable form, the Servicer's obligation to do so and to deliver the same for such recording shall be as soon as practicable after receipt of such information and in any event within thirty (30) days after receipt thereof and that the Servicer need not cause to be recorded any assignment which relates to a Mortgage Loan (a) the Mortgaged Property and Mortgage File relating to which are located in MarylandCalifornia or (b) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency other jurisdiction under the laws of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller which in the manner described above, at no expense opinion of counsel the recordation of such assignment is not necessary to the Trust Fund or protect the Trustee, upon 's and the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described Certificateholders' interest in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related MortgageMortgage Loan. Notwithstanding In the foregoing, if the Master Servicer is unable to pay the cost case of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered have been prepaid in full as of the Closing Date, the Depositor, in lieu of delivering the above documents to the Trustee, or to will deposit in the appropriate Custodian on behalf Collection Account the portion of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event such payment that any such original document is required to be deposited in the Collection Account pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws3.08 hereof.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Mortgage Pass THR Certs Ser 1998-1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase AgreementAssignment Agreement and the PMI Policy, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Wf2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contract. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asst Back Pass THR Certs Ser 2003-W3)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts deposited therein). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as SellerOriginator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as SellerOriginator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Originator) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Originator is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asst Back Pas THR Certs Ser 2003-9)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase AgreementAssignment Agreements, and the Trustee, Trustee and the Paying Agent acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigneda Custodian on its behalf, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) with respect to each Mortgage Loan so transferred and assigned:
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of the related Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the related Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS(R) System, an original Assignment assigned assignment from the related Originator or an Affiliate of the related Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS(R) System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender's recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney's opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Master Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Seller shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Servicer, at the expense of the Seller) , shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Master Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Master Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeMaster Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Master Servicer Event of Termination, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Master Servicer and the Master Servicer shall be reimbursable reimbursed for such expenses by the Trust as set forth herein. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field "Pool Field" which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trustee to execute, deliver and perform its obligations under the Cap Contracts on the Closing Date and thereafter on behalf of the Trust and the Holders of the Floating Rate Certificates. The Seller, the Depositor, the Master Servicer, the Trust Administrator, the Paying Agent and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trustee shall execute, deliver and perform the Trust Fund's obligations under the Cap Contracts and shall do so solely in its capacity as Trustee of the Trust Fund and not in its individual capacity.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2005-He 1)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of MILA Mortgage Acceptance, Inc., Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of MILA Mortgage Acceptance, Inc., Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Depositor pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MILA Mortgage Acceptance, Inc.)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of MILA Mortgage Acceptance, Inc., Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of MILA Mortgage Acceptance, Inc., Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (MILA Mortgage Acceptance, Inc.)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAssignment Agreements, payments made to the Trust Administrator under the Basis Risk Cap Agreements and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master related Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase Agreement, Assignment Agreements and the Trustee, Trustee acknowledges receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the related Originator or an Affiliate of the related Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the related Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the related Originator or an Affiliate of the related Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (v) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date. In instances where an original assumption, promptly upon receipt thereof any other modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original documents constituting of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe related Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master related Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) related Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments related Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the related Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the Trusteerelated Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee related Servicer and such Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the related Servicer to, and the related Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master related Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master related Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties Depositor and the Trustee hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trust Administrator to execute, deliver and perform its obligations under the Basis Risk Cap Agreements. The Depositor, the Servicer and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trust Administrator shall execute, deliver and perform its obligations under the Basis Risk Cap Agreements and shall do so solely in its capacity as Trust Administrator, and not in its individual capacity. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Administrator shall apply to the Trust Administrator’s execution of the Basis Risk Cap Agreements, and the performance of its duties and satisfaction of its obligations thereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Fx1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, the Interest Rate Swap Agreement certain payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by or on behalf of the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, Trustee on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, with all riders, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with all riders, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund Fund, the Servicer or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Xxxxx Fargo Bank, N.A.", as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund Fund, the Servicer or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and hereof, (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related MortgageMortgage and (vi) with respect to any Assigments, the payment in full of the related Mortgage Note. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. In the event that any Assignments are not recorded or are improperly recorded, the Servicer shall have no liability for its failure to receive or act on notices not received relating to such failure to record or the improper recording of such Assignments. The Seller shall forward all notices regarding Assignments it receives to the Servicer. In the event that the Trust or the Servicer suffers a loss directly related to the Seller's failure to forward such notices, the Seller shall reimburse and indemnify the Servicer and/or the Trust for such loss. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws. On the Closing Date, the Depositor will also deposit, or cause to be deposited in the Distribution Account $100.00, which shall be part of Available Funds on the first Distribution Date.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, the Interest Rate Swap Agreement and Swap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee and the Trust Administrator an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (v) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In the event an Assignment of Mortgage is not recorded with respect to a Mortgage Loan, neither the Trustee nor the Servicer will have any obligation for its failure to receive or act on notices with respect to such Mortgage Loan that the Trustee or the Servicer would have received had such Assignment of Mortgage been recorded. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. The Depositor shall deliver or cause the Sponsor to deliver to the Servicer copies of all trailing documents required to be included in the servicing file at the same time the originals or certified copies thereof are delivered to the Trustee or Custodian, such documents including but not limited to the mortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. The Servicer shall not be responsible for any custodian fees or other costs incurred in obtaining such documents and the Depositor shall cause the Servicer to be reimbursed for any such costs it may incur in connection with performing its obligations under this Agreement. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ahl3)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Accounts, and the Trustee, on behalf of the CertificateholdersCertificateholders and the Certificate Insurer, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Policy); provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of American Home Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of American Home Mortgage Securities LLC, Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8- 301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Securities LLC)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contracts. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Account, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass Thru Cer Ser 2003-W9)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Assignment Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee and the Trust Administrator an executed copy of the Mortgage Loan Purchase Assignment Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In the event an Assignment of Mortgage is not recorded with respect to a Mortgage Loan, neither the Trustee nor the Servicer will have any obligation for its failure to receive or act on notices with respect to such Mortgage Loan that the Trustee or the Servicer would have received had such Assignment of Mortgage been recorded. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. The Depositor shall deliver or cause the Seller to deliver to the Servicer copies of all trailing documents required to be included in the servicing file at the same time the originals or certified copies thereof are delivered to the Trustee or Custodian, such documents including but not limited to the mortgagee policy of title insurance and any mortgage loan documents upon return from the recording office. The Servicer shall not be responsible for any custodian fees or other costs incurred in obtaining such documents and the Depositor shall cause the Servicer to be reimbursed for any such costs it may incur in connection with performing its obligations under this Agreement. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Ahl1)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank"Bankers Trust Company of California, without recourse, or in the following form: "Pay to the order of [_]N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 1998-3" with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Mortgage certified by the Seller to be a true and complete copy of the original Mortgage submitted for recording;
(iii) a duly executed original Assignment of the Mortgage, without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates", Series 1998-3;
(iv) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement; and
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance for each Mortgage Loan identified on the Mortgage Loan Schedule as having a Loan-to-Value Ratio at origination of 80% or greater. The Seller is obligated as described in the Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (Seller is required, as described in its capacity as Seller) shall promptly the Mortgage Loan Purchase Agreement, to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Seller shall cause each such Assignment to be duly recordedrecorded in accordance with this section. Notwithstanding The Seller is required as described in the foregoing, however, for administrative convenience and facilitation of servicing and Mortgage Loan Purchase Agreement to reduce closing costs, the Assignments shall not be required exercise its best reasonable efforts to deliver or cause to be submitted for recording (except delivered to the Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to any each Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable assigned to the Trustee as an Extraordinary Trust Fund Expensepursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Trustee or its agent of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to and the Trustee an executed copy agree that it is not intended that any mortgage loan be included in 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 Practices Act effective November 7, 2004, or (iv) a “High-Cost Home Loan” as defined in the Indiana House Enrolled Act No. 1229, effective as of the Mortgage Loan Purchase AgreementJanuary 1, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same2005. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller with respect to each Mortgage Loan, to deliver to, and deposit withto or at the direction of the Trustee, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay recourse to the order of [_]the Trustee or in blank, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator original payee thereof to the Person so endorsing it to the TrusteeTrustee or in blank or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded;
(iii) an assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage in blank or to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) and otherwise in recordable form;
(iv) originals of any intervening assignments of the Mortgage, with evidence of recording thereon, and or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy, copy of such original intervening assignment certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) Seller or the public recording office in which such original unrecorded intervening Assignmentsassignment has been recorded;
(v) the original policy of title insurance (or copies of each assumption, modification, written assurance or substitution agreementa preliminary title report commitment for title insurance, if anythe policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete correct copy of the original that was submitted for recording and (2) any assumption, modification, consolidation or substitution agreement, if such copy is certified by the Originatorany, delivery relating to the Trustee, or to Mortgage Loan. Within 30 days after the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) aboveClosing Date, the Depositor Company shall deliver complete or cause to be delivered completed the Assignments of Mortgage in the name of “Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement relating to the TrusteeAmerican Home Mortgage Assets LLC, Mortgaged-Backed Pass-Through Certificates, Series 2005-1” (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver prepare or cause to be delivered to prepared new forms of Assignment of Mortgage so completed in the Trustee, or to the appropriate Custodian on behalf name of the Trustee) for each Mortgage Property in a state, promptly upon receipt thereof any other original documents constituting a part if any, which is specifically excluded from the Opinion of a Mortgage File received with respect Counsel delivered by the Company to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Trustee and the TrusteeCustodian, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to each such assignment shall be submitted for recording, at no expense to the Trust Fund or the Trustee, recorded in the appropriate public office for real property records, each and returned to the Custodian, at no expense to the Trustee or the Custodian. The Seller is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to or at the direction of the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Custodian as agent for the Trustee pursuant to clause (ii) above; and (b) either the original Assignment referred or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in Sections 2.01(iii) the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Custodian as agent for the Trustee pursuant to clause (iv) above and shall execute each original Assignment referred above. However, pursuant to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect thereinMortgage Loan Purchase Agreement, the Master Servicer (in its capacity as Seller) shall promptly prepare or Seller need not cause to be prepared a substitute Assignment or cure or cause to be cured such defectrecorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the case may beSeller to the Trustee, the Custodian and thereafter cause each the Rating Agencies, the recordation of such Assignment assignment is not necessary to be duly recorded. Notwithstanding protect the foregoingTrustee’s interest in the related Mortgage Loan; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund Trust, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testan Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid deemed to have satisfied its obligations hereunder upon delivery to the Custodian as agent for the Trustee of a copy of such Mortgage certified by the Trustee public recording office to be a true and shall be reimbursable complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Custodian as agent for the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf because of the Trustee, are and shall be held by or on behalf of the Sellerany defect therein, the Depositor Seller or the Master ServicerAHMC, as the case may be, is required, as described in trust the Mortgage Loan Purchase Agreement and the AHMC Side Agreements, to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller or AHMC, as applicable, shall cause such Assignment to be recorded in accordance with this section. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller’s own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee on behalf and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it will not, and will not permit the Servicer to alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. Except as may otherwise expressly be provided herein, none of the Company, the Custodian, the Master Servicer, or the Trustee shall (and the Master Servicer shall ensure that no Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. In It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Distribution Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage Filefirst priority under applicable law and will be maintained as such throughout the term of the Agreement. Concurrently with the execution of this Agreement, such document the Corridor Contract Administration Agreement shall be delivered promptly to the TrusteeSecurities Administrator and the Corridor Contract Administrator. In connection therewith, or the Company hereby directs the Securities Administrator (solely in its capacity as such) and the Corridor Contract Administrator (solely in its capacity as such) to execute and deliver the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsCorridor Contract Administration Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2005-1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement -A and the Swap Account. REMIC II-A. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening AssignmentsMortgage Loan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if any; anda copy thereof;
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; and
(xvii) has not been returned from If such Mortgage Loan is a Buydown Mortgage Loan (as shown in the applicable public recording office or (y) has been lost or such public recording office has retained Mortgage Loan Schedule), the original of such document, the obligations of Buydown Agreement or a copy thereof. In instances where an original recorded Mortgage cannot be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Master Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Seller shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Servicer, at the expense of the Seller) , shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Master Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Master Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeMaster Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Master Servicer Event of Termination, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Master Servicer and the Master Servicer shall be reimbursable reimbursed for such expenses by the Trust as set forth herein. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or Custodian on behalf of the Trustee. It is agreed and understood by the parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan to be included in the Trust that is Fund be (i) a "“High-Cost Home Loan" ” as defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the Indiana Home Loan Practices Act effective January 1, 2005. It is agreed and understood by HOEPA or the parties hereto that it is not intended that any other Mortgage Loan to be included in the Trust Fund not comply in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory or and abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust Inc., Series 2006-Ar3)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers Master Servicer hereby acknowledges the receipt by it of cash in an amount equal to $11,053.50 (the Trustee an executed copy of "Special Deposit"), representing interest at the Mortgage Loan Purchase AgreementRate, for the calendar month of January 2001, for those Mortgage Loans which do not have Monthly Payments due on February 1, 2000. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Trustee, on behalf of Available Distribution Amount for the Certificateholders, acknowledges receipt of the sameDistribution Date in March 2000. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order Bankers Trust Company of [_]California, N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 2001-1" with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyMortgage or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Seller or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(2iii) if such copy is certified by a duly executed original Assignment of the OriginatorMortgage, delivery without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2001-1";
(iv) the original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, or Person assigning it to the appropriate Custodian on behalf of Trustee or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Seller to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy;
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement; and
(viii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance for each Mortgage Loan so identified on the Mortgage Loan Schedule (other than a Radian Lender-Paid PMI Policy). The Seller is obligated as described in the Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was not delivered to the Trustee pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the Depositor shall deliver or Seller need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, 's interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid by the Trustee and shall be reimbursable deemed to have satisfied its obligations hereunder upon delivery to the 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 Trustee because of any defect therein, the Seller is required, as an Extraordinary Trust Fund Expensedescribed in the Mortgage Loan Purchase Agreement, to 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 section. The Seller is required as described in the Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to each Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the REMIC 1 Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the REMIC 1 Regular Interests by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans and the REMIC 1 Regular Interests are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the REMIC 1 Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of American Home Mortgage Assets LLC, Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of American Home Mortgage Assets LLC, Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets LLC)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Servicer, the Trustee and with the Trusteeprior written consent of the Certificate Insurer (which consent shall not be unreasonably withheld), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund Fund, the Certificate Insurer or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Certificate Insurance Policy); provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement Certificateholders and the Swap AccountInsurer. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, ) and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameYield Maintenance Agreement Purchase Price. In connection with such transfer and assignment, the Depositor does hereby has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank"Bankers Trust Company of California, without recourse, or in the following form: "Pay to the order of [_]N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 1999-1" with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage or, if the original Mortgage has not been returned from the applicable public recording office, a copy of the Mortgage certified by the Seller to be a true and complete copy of the original Mortgage submitted for recording;
(iii) a duly executed original Assignment of the Mortgage, without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates", Series 1999-1;
(iv) the original recorded Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement; and
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance for each Mortgage Loan, if applicable. The Seller is obligated as described in the Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (Seller is required, as described in its capacity as Seller) shall promptly the Mortgage Loan Purchase Agreement, to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Seller shall cause each such Assignment to be duly recordedrecorded in accordance with this section. Notwithstanding The Seller is required as described in the foregoing, however, for administrative convenience and facilitation of servicing and Mortgage Loan Purchase Agreement to reduce closing costs, the Assignments shall not be required exercise its best reasonable efforts to deliver or cause to be submitted for recording (except delivered to the Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to any each Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable assigned to the Trustee as an Extraordinary Trust Fund Expensepursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Insurer. In Except as may otherwise expressly be provided herein, neither the Depositor, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders and the Insurer. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A)(1)the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files and (2) the Yield Maintenance Agreement Purchase Price, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Trustee or its agent of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. (a) The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan ScheduleSchedule prepared by the Depositor and attached as Schedule I hereto, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (other than the rights under Section 17 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Fund. Such assignment includes all interest and all principal received by the Depositor or the Master Servicer on or after the Cut-off Date with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date)) less an amount equal to eight (8) days of interest at the Net Mortgage Rate due and collected or advanced on the Mortgage Loans during the initial Collection Period. The Depositor herewith delivers All remaining interest due and received on the Mortgage Loans with respect to the Trustee an executed copy of first Collection Period shall be remitted by the Servicer to the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameOriginator. In connection with such transfer and assignment, the Depositor does hereby will cause the Mortgage Loan Originator to deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) so transferred and assigned:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]The Chase Manhattan Bank, as Trustee under for the applicable agreementregistered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 1999-NC1, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified by the Mortgage Loan Originator to be a true and complete copy of the original submitted for recording with the recorded original to be delivered by the Mortgage Loan Originator to the Trustee within 120 days of the Closing Date;
(iii) an original Assignment assigned of the Mortgage executed in blankthe following form: "The Chase Manhattan Bank, without recourseas Trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Inc., Series 1999-NC1";
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or, if any such Assignment has been submitted for recording but has not been returned from the applicable public recording office or is not otherwise available, a copy of such Assignment certified by the Mortgage Loan Originator to be a true and complete copy of the original unrecorded intervening Assignmentssubmitted for recording with the recorded original to be delivered by the Mortgage Loan Originator to the Trustee within 120 days of the Closing Date;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow companycompany with the original title policy to be delivered by the Mortgage Loan Originator to the Trustee within 120 days of the Closing Date.
(b) The Depositor shall cause the Mortgage Loan Originator to promptly (and in no event later than five Business Days following the Closing Date) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Depositor shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded.
(c) If any original Mortgage Note referred to in Section 2.01(i) cannot be located, the obligations of the Depositor to cause the Mortgage Loan Originator to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee of a photocopy of the original of such Mortgage Note, with a Lost Note Affidavit to follow within one Business Day. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to cause the Mortgage Loan Originator to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document certified by the Mortgage Loan Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Mortgage Loan Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. Notice shall be provided to the Trustee and the Rating Agencies by the Mortgage Loan Originator if delivery pursuant to clause (2) above will be made more than 180 days after the Closing Date. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall cause the Mortgage Loan Originator to deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall cause the Mortgage Loan Originator to deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer .
(in its capacity as Sellerd) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the SellerMortgage Loan Originator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor or the Mortgage Loan Originator that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. .
(e) The parties hereto understand and agree that it is not intended that any mortgage loan be included in Depositor herewith delivers to the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsTrustee an executed copy of the Mortgage Loan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Structured Asset Securities Corp)
Conveyance of Mortgage Loans. The DepositorSeller, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey assign to the Trustee Trustee, without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Seller in and to (a) the Mortgage Loans identified on the Mortgage Loan ScheduleTrust Estate, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes including all interest (other than the portion, if any, representing the Fixed Retained Yield) and principal received by the Depositor or the Master Servicer Seller on or with respect to the Mortgage Loans after the Cut-Off Date (other than and including scheduled payments of principal and interest due after the Cut-Off Date but received by the Seller on or before the Cut-Off Date and Unscheduled Principal Receipts received or applied on the Cut-Off Date, but not including payments of principal and interest due on such the Mortgage Loans on or before the Cut-off Off Date). The Depositor herewith delivers , (b) the Insurance Policies, (c) the obligations of the Servicers under the Servicing Agreements with respect to the Trustee an executed copy of Mortgage Loans, (d) the Mortgage Loan Purchase Agreementright to receive amounts, and the Trusteeif any, payable on behalf of any Mortgagor from the CertificateholdersSubsidy Account relating to any Subsidy Loan, acknowledges receipt (e) all of the sameSeller's right, title and interest in and to the proceeds of the Letters of Credit, (f) the Assigned Letters of Credit and (g) proceeds of all the foregoing. In connection with such transfer and assignment, the Depositor does hereby deliver toSeller shall, and deposit withwith respect to each Mortgage Loan, deliver, or cause to be delivered, to the Trustee Custodian, on or before the Closing Date the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):Loan.
(i) the The original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing as may be necessary to show a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with endorsements. With respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost or destroyed and has not been replaced, a lost note affidavit with a copy of the Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage with evidence of recordation noted thereon or attached thereto, together with any addenda or riders thereto, or a copy of such recorded Mortgage with such evidence of recordation certified to be true and correct by the appropriate governmental recording office; or a copy of such recorded Mortgage with such evidence of recordation, or if the original Mortgage has been submitted for recordation but has not been returned from the applicable public recording office, a copy of the Mortgage certified by an officer of WFHM or the applicable WFHM Correspondent to be a true and correct copy of the original Mortgage submitted for recordation;
(iii) For each MERS Mortgage Loan that is not a MOM Mortgage Loan, the original assignment showing MERS as the assignee of the Mortgage, with evidence of recording thereon, and a copy, thereon or copies thereof certified by an officer of WFHM or the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant applicable WFHM Correspondent to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recoursehave been submitted for recordation;
(iv) A recorded original assignment of the original recorded intervening Assignment or Assignments showing a complete chain of assignment related Mortgage from the originator to the Person WFHM assigning the related Mortgage to the Trustee as contemplated (which may be assigned in blank), certified by the immediately preceding clause recording office, or, if such assignment is in the process of being recorded, a copy of the related Mortgage transmitted for recordation certified by an officer of WFHM or applicable WFHM Correspondent to be a true and correct copy of such assignment submitted for recordation; provided, however, if recordation is not required as described below, an assignment in recordable form (iiiwhich may be assigned in blank) or with respect to the original unrecorded intervening Assignmentsrelated Mortgage;
(v) Each original recorded intervening assignment of the original Mortgage as may be necessary to show a complete chain of title from the Mortgage Loan originator to WFHM, with evidence of recordation noted thereon or copies attached thereto, or a copy of each assumptionsuch assignment with such evidence of recordation to be true and correct by the appropriate governmental recording office, modification, written assurance or substitution agreementor, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of any such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above assignment has as of the Closing Date been submitted for recording recordation but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentis not otherwise available, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document assignment certified by the Originator in the case an officer of (x) above WFHM or the applicable public recording office in the case of (y) above WFHM Correspondent to be a true and complete correct copy of the original that was recorded assignment submitted for recording and recordation;
(2vi) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf The original policy of the Trusteetitle insurance or certificate of title insurance or a written commitment to issue such a title insurance policy or certificate of title insurance, promptly upon receipt thereof of either the original or a copy of such document title insurance certified as true and correct by the applicable public recording office insurer or any attorney's certificate of title with an Officer's Certificate of WFHM or the applicable WFHM Correspondent that such attorney's certificate of title is customarily used in lieu of a title insurance policy in the jurisdiction in which the related mortgage property is located;
(vii) The original of each assumption agreement, modification, written assurance or substitution agreement pertaining to such Mortgage Loan, if any, or, if such document is in the process of being recorded, a copy of such document, certified by an officer of WFHM or the applicable WFHM Correspondent of such Mortgage Loan or by the applicable title insurance company, closing agent, settlement agent, escrow agent or closing attorney to be a true and complete correct copy of such document transmitted for recordation, if any; and
(viii) For each Mortgage Loan secured by Co-op Shares, the originaloriginals of the following documents or instruments:
(a) The loan security agreement;
(b) The stock certificate;
(c) The stock power, executed in blank;
(d) The executed proprietary lease;
(e) The executed recognition agreement;
(f) The executed assignment of recognition agreement;
(g) The executed UCC-1 financing statement with evidence of recording thereon; and
(h) The executed UCC-3 financing statements or other appropriate UCC financing statements required by state law, evidencing a complete and unbroken chain from the mortgagee to the Trustee with evidence of recording thereon (or in a form suitable for recordation).
(ix) For each Letter of Credit, the original advice of such Letter of Credit endorsed by the Pledge Holder and WFHM's notice of transfer (Exhibit A to the Letter of Credit) of beneficiary of such Letter of Credit to the Trustee. If any Mortgage or an assignment of a Mortgage to the Trustee or any prior assignment is in the process of being recorded on the Closing Date, the Seller shall use its best efforts to cause each such original lender's title insurance policy was recorded document or certified copy thereof to be delivered to the Custodian promptly following its recordation, but in no event later than one (1) year following the Closing Date. If any Mortgage has been recorded in the name of MERS or its designee, no assignment of Mortgage in favor of the Trustee will be required to be prepared or delivered and instead, the Master Servicer shall take all actions as are necessary to cause the Trust Estate to be shown as the owner of the related Mortgage Loan on the records of MERS for the purpose of the system of recording transfers of beneficial ownership of mortgages maintained by MERS. The Seller shall also cause to be delivered to the Custodian any other original mortgage loan document included in the Owner Mortgage Loan File if a copy thereof has been delivered. The Seller shall pay from its own funds, without any right of reimbursement therefor, the amount of any costs, liabilities and expenses incurred by the Trust Estate by reason of the failure of the Seller to cause to be delivered to the Custodian within one (1) year following the Closing Date any original Mortgage or assignment of a Mortgage (except with respect to any Mortgage recorded in the name of MERS) not delivered pursuant to Section 2.01(vi) abovethe Custodian on the Closing Date. In lieu of recording an assignment of any Mortgage the Seller may, the Depositor shall deliver or cause to be delivered to the Trustee, or Custodian the assignment of the Mortgage Loan to the appropriate Custodian on behalf of the TrusteeTrustee in a form suitable for recordation, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received if (i) with respect to any a particular state the Trustee has received an Opinion of Counsel acceptable to it that such recording is not required to make the assignment effective against the parties to the Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification subsequent purchasers or encumbrancers of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, Mortgaged Property or (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt has been advised by the Master Servicer of the recording information for each Rating Agency that non-recordation in a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall state will not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency reduction of the rating on any Class assigned by that Rating Agency at the time of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% initial issuance of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificates. In the event that the Custodian receives notice that recording is required to protect the right, title and interest of the Trustee in and to any such original document is required pursuant Mortgage Loan for which recordation of an assignment has not previously been required, the Custodian shall promptly notify the Trustee and the Custodian shall within five Business Days (or such other reasonable period of time mutually agreed upon by the Custodian and the Trustee) of its receipt of such notice deliver each previously unrecorded assignment to the terms related Servicer for recordation. Except where endorsements in blank are authorized, endorsements of this Section to be a part any Mortgage Notes shall comply with the following format: WITHOUT RECOURSE PAY TO THE ORDER OF: WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE under the pooling and servicing agreement dated as of a Mortgage File[date]. and its successors and assigns, such document shall be delivered promptly to the TrusteeWells Faxxx Xome Mortgage, Inc. [Signature of Officer] [Officer's Name and Title] Except where assignments in blank are authorized or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or case of any other applicable predatory or abusive lending laws.Mortgage registered in the name of MERS, assignments of any Mortgage shall comply with the following: WACHOVIA BANK, NATIONAL ASSOCIATION, AS TRUSTEE and its successors and assigns
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Wells Fargo Asset Sec Corp Mort Pass THR Certs Series 2003-8)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 18 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement -A and the Swap Account. REMIC II-A. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening AssignmentsMortgage Loan;
(v) With respect to any Mortgage Loan listed on the Mortgage Loan Schedule as subject to a Primary Mortgage Insurance Policy, the original Primary Mortgage Insurance Policy or copies of each assumption, modification, written assurance certificate or substitution agreement, if any; anda copy thereof;
(vi) The original or a copy of the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; and
(xvii) has not been returned from If such Mortgage Loan is a Buydown Mortgage Loan (as shown in the applicable public recording office or (y) has been lost or such public recording office has retained Mortgage Loan Schedule), the original of such document, the obligations of Buydown Agreement or a copy thereof. In instances where an original recorded Mortgage cannot be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed-interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Master Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Seller shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Servicer, at the expense of the Seller) , shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Master Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Master Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeMaster Servicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Master Servicer Event of Termination, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Seller fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Master Servicer and the Master Servicer shall be reimbursable reimbursed for such expenses by the Trust as set forth herein. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or Custodian on behalf of the Trustee. It is agreed and understood by the parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan to be included in the Trust that is Fund be (i) a "“High-Cost Home Loan" ” as defined in the New Jersey Home Ownership Act effective November 27, 2003, (ii) a “High-Cost Home Loan” as defined in the New Mexico Home Loan Protection Act effective January 1, 2004, (iii) a “High-Cost Home Mortgage Loan” as defined in the Massachusetts Predatory Home Loan Practices Act effective November 7, 2004 or (iv) a “High Cost Home Loan” as defined in the Indiana Home Loan Practices Act effective January 1, 2005. It is agreed and understood by HOEPA or the parties hereto that it is not intended that any other Mortgage Loan to be included in the Trust Fund not comply in all material respects with applicable local, state and federal laws, including, but not limited to, all applicable predatory or and abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-6)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 17 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameMortgage Loan Sale and Contribution Agreement. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, blank or in the following form: "Pay to the order of [_]Norwest Bank Minnesota, National Association, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned of the Mortgage in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments);
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The Master Servicer (in its capacity as Originator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of the Closing Date and the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment in the following form: "Norwest Bank Minnesota, National Association, as Trustee under the applicable agreement". In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Originator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the assignments of Mortgage shall not be required to be completed and submitted for recording with respect to any Mortgage Loan only if the Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note; provided further, however, notwithstanding the delivery of any opinion of counsel, each assignment of Mortgage shall be submitted for recording by the Originator in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (iv) if the Originator is not the Master Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments of Mortgage, such expense will be paid by the Trustee. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Originator, the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Fl Rt MRT Ps THR Cert 1999 Aq1)
Conveyance of Mortgage Loans. The Depositor, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC Ithe Trust Fund for the benefit of the Certificateholders, payments made including the amount to be deposited by or on behalf of the Trustee by Depositor into the Swap Administrator under the Swap Administration Agreement and the Swap AccountNet WAC Shortfall Reserve Funds. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers Trustee is hereby authorized and directed to enter into the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameCorridor Contracts. In connection with such transfer and assignment, the Depositor does hereby has caused the Sponsor to deliver to, and deposit withwith the Custodian, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]“Deutsche Bank National Trust Company, as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse," Mortgage Pass-Through Certificates, Series 2006-2” with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original recorded Mortgage, noting the presence of the MIN of the Mortgage Loan and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyindicated thereon or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Sponsor or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(iii) unless the Mortgage Loan is registered on the MERS® System, a duly executed original Assignment of the Mortgage, without recourse, in recordable form to Deutsche Bank National Trust Company, as trustee,” or to “Deutsche Bank National Trust Company, as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2006-2”;
(iv) if such copy is certified by the Originator, delivery original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, Person assigning it to the Trustee (or to MERS, if the appropriate Custodian Mortgage Loan is registered on behalf the MERS® System and noting the presence of a MIN) or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Sponsor to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy; and
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Sponsor is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to the Custodian: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Sponsor, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Sponsor was not delivered to the Custodian pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Sponsor, or in the event such original cannot be delivered by the Sponsor, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Sponsor were delivered to the Custodian pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, the Depositor shall deliver or Sponsor need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Sponsor to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, ’s interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller Sponsor in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Sponsor is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the public recording office retains the original Mortgage after it has been recorded, the Sponsor shall be deemed to have satisfied its obligations hereunder upon delivery to the Custodian 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 Custodian because of any defect therein, the Sponsor is required, as described in the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, to prepare a substitute Assignment or cure such defect, as the case may be, and the Sponsor shall cause such Assignment to be recorded in accordance with this section. The Sponsor is required as described in the Mortgage Loan Purchase Agreement with respect to the Mortgage Loans, to exercise its best reasonable efforts to deliver or cause to be delivered to the Custodian 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 Trustee pursuant to this Section 2.01. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Sponsor further agrees that it will cause, at the Sponsor's own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Sponsor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Master Servicer to, and the Master Servicer agrees that it will not, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is unable to pay repurchased in accordance with the cost terms of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expensethis Agreement. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Depositor, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Depositor to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Depositor to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Depositor to the Trustee to secure a debt or other obligation of the Depositor. However, in the event that the Mortgage Loans are held to be property of the Depositor, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Depositor to the Trustee of a security interest in all of the Depositor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Depositor to the Trustee of any security interest in any and all of the Sponsor's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Trustee or any other Custodian or agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Depositor and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage Filefirst priority under applicable law and will be maintained as such throughout the term of the Agreement. Concurrently with the execution of this Agreement, such document the Interest Rate Swap Agreements shall be delivered promptly to the Trustee. In connection therewith, or the Company hereby directs the Trustee (not in its individual capacity, but solely in its capacity as such) to execute and deliver the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsIntereset Rate Swap Agreements.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Assignment Agreement, the Interest Rate Swap Agreement and the Swap Account and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trust Administrator on behalf of the Trustee an executed copy of the Mortgage Loan Purchase Assignment Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or the Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankrecordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any copy of the documents referred preliminary title report and the lender’s recording instructions, with the original to in Sections 2.01(ii), (iii) or (iv) above has as be delivered within 180 days of the Closing Date been submitted for recording but either (x) has or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title. In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to or the Trustee, or to the appropriate Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by original recorded Mortgage referred to in clause (ii) above, deliver to the Originator in the case of Trustee (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or the Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or the Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (v) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (v) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee) within 180 days of the Closing Date. In instances where an original assumption, promptly upon receipt thereof any other modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or the Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original documents constituting of such agreement referred to in clause (iv) above, deliver a part of a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording any Assignment delivered to it or the Custodian pursuant to (except with respect to any Mortgage Loan located in Marylandiii) unless above if such failure to record would result in a withdrawal or a downgrading by any Rating Agency recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or the Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or the Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or the Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or the Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or the Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2007-Wfhe4)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to and the Trustee an executed copy agree that it is not intended that any mortgage loan be included in 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 Practices Act effective November 7, 2004, or (iv) a “High-Cost Home Loan” as defined in the Indiana House Enrolled Act No. 1229, effective as of the Mortgage Loan Purchase AgreementJanuary 1, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same2005. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller with respect to each Mortgage Loan, to deliver to, and deposit withto or at the direction of the Trustee, as described in the Trustee the following documents or instruments Mortgage Loan Purchase Agreement, with respect to each Mortgage Loan so transferred and assignedLoan, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay recourse to the order of [_]the Trustee or in blank, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator original payee thereof to the Person so endorsing it to the TrusteeTrustee or in blank or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage with evidence of recording thereon, or, if the original Mortgage has not yet been returned from the public recording office, a copy of the original Mortgage certified by the Seller or the public recording office in which such original Mortgage has been recorded;
(iii) an assignment (which may be included in one or more blanket assignments if permitted by applicable law) of the Mortgage in blank or to the Trustee (or to MERS, if the Mortgage Loan is registered on the MERS® System and noting the presence of a MIN) and otherwise in recordable form;
(iv) originals of any intervening assignments of the Mortgage, with evidence of recording thereon, and or, if the original of any such intervening assignment has not yet been returned from the public recording office, a copy, copy of such original intervening assignment certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) Seller or the public recording office in which such original unrecorded intervening Assignmentsassignment has been recorded;
(v) the original policy of title insurance (or copies of each assumption, modification, written assurance or substitution agreementa preliminary title report commitment for title insurance, if anythe policy is being held by the title insurance company pending recordation of the Mortgage); and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete correct copy of the original that was submitted for recording and (2) any assumption, modification, consolidation or substitution agreement, if such copy is certified by the Originatorany, delivery relating to the Trustee, or to Mortgage Loan. Within 30 days after the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) aboveClosing Date, the Depositor Company shall deliver complete or cause to be delivered completed the Assignments of Mortgage in the name of “Deutsche Bank National Trust Company, as trustee under the Pooling and Servicing Agreement relating to the TrusteeAmerican Home Mortgage Assets LLC, Mortgaged-Backed Pass-Through Certificates, Series 2005-2” (or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver prepare or cause to be delivered to prepared new forms of Assignment of Mortgage so completed in the Trustee, or to the appropriate Custodian on behalf name of the Trustee) for each Mortgage Property in a state, promptly upon receipt thereof any other original documents constituting a part if any, which is specifically excluded from the Opinion of a Mortgage File received with respect Counsel delivered by the Company to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Trustee and the TrusteeCustodian, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to each such assignment shall be submitted for recording, at no expense to the Trust Fund or the Trustee, recorded in the appropriate public office for real property records, each and returned to the Custodian, at no expense to the Trustee or the Custodian. The Seller is obligated as described in the Mortgage Loan Purchase Agreement, with respect to the Mortgage Loans, to deliver to or at the direction of the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Custodian as agent for the Trustee pursuant to clause (ii) above; and (b) either the original Assignment referred or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in Sections 2.01(iii) the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Custodian as agent for the Trustee pursuant to clause (iv) above and shall execute each original Assignment referred above. However, pursuant to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect thereinMortgage Loan Purchase Agreement, the Master Servicer (in its capacity as Seller) shall promptly prepare or Seller need not cause to be prepared a substitute Assignment or cure or cause to be cured such defectrecorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the case may beSeller to the Trustee, the Custodian and thereafter cause each the Rating Agencies, the recordation of such Assignment assignment is not necessary to be duly recorded. Notwithstanding protect the foregoingTrustee’s interest in the related Mortgage Loan; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund Trust, the Custodian or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testan Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid deemed to have satisfied its obligations hereunder upon delivery to the Custodian as agent for the Trustee of a copy of such Mortgage certified by the Trustee public recording office to be a true and shall be reimbursable complete copy of the recorded original thereof. If any Assignment is lost or returned unrecorded to the Custodian as agent for the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf because of the Trustee, are and shall be held by or on behalf of the Sellerany defect therein, the Depositor Seller or the Master ServicerAHMC, as the case may be, is required, as described in trust the Mortgage Loan Purchase Agreement and the AHMC Side Agreements, to prepare a substitute Assignment or cure such defect, as the case may be, and the Seller or AHMC, as applicable, shall cause such Assignment to be recorded in accordance with this section. In connection with the assignment of any Mortgage Loan registered on the MERS® System, the Seller further agrees that it will cause, at the Seller’s own expense, as of the Closing Date, the MERS® System to indicate that such Mortgage Loans have been assigned by the Seller to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including (or deleting, in the case of Mortgage Loans which are repurchased in accordance with this Agreement) in such computer files (a) the code in the field which identifies the specific Trustee on behalf and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Company further agrees that it will not, and will not permit the Servicer to alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. Except as may otherwise expressly be provided herein, none of the Company, the Custodian, the Master Servicer, or the Trustee shall (and the Master Servicer shall ensure that no Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. In It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Distribution Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller’s right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C); (c) the possession by the Custodian as agent for the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be “possession by the secured party” or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1-A Regular Interests and the REMIC 2-A Regular Interests Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage Filefirst priority under applicable law and will be maintained as such throughout the term of the Agreement. Concurrently with the execution of this Agreement, such document the Yield Maintenance Administration Agreement shall be delivered promptly to the TrusteeSecurities Administrator and the Yield Maintenance Administrator. In connection therewith, or the Company hereby directs the Securities Administrator (solely in its capacity as such) and the Yield Maintenance Administrator (solely in its capacity as such) to execute and deliver the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsYield Maintenance Administration Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (American Home Mortgage Assets Trust 2005-2)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amounts, the PMI Policies and the required deposit, if any, to the Interest Coverage Accounts, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, so long as recordation of an Assignment is not necessary to protect the Trustee's and the Certificateholders' interests in the related Mortgage Loan under the laws of the jurisdiction in which the related Mortgaged Property is located, as evidenced by an Opinion of Counsel reasonably satisfactory to the Guarantor delivered by the Master Servicer to the Trustee and the Guarantor, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Guarantor or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2004-R12)
Conveyance of Mortgage Loans. The Seller hereby sells, transfers, assigns, sets over and otherwise conveys to the Depositor, without recourse, all the right, title and interest of the Seller in and to the Mortgage Loans, including all interest and principal received and receivable by the Seller on or with respect to the Mortgage Loans on and after the Cut-off Date (to the extent not applied in computing the Cut-off Date Principal Balance thereof) or deposited into the Certificate Account by the Seller as an Initial Certificate Account Deposit as provided in this Agreement, other than principal due on the Mortgage Loans prior to the Cut-off Date and interest accruing prior to the Cut-off Date. The Seller confirms that, concurrently with such transfer and assignment, it has deposited into the Certificate Account the Initial Certificate Account Deposit. The Seller has entered into this Agreement in consideration for the purchase of the Mortgage Loans by the Depositor and has agreed to take the actions specified herein. The Depositor, concurrently with the execution and delivery hereof, does hereby transfersells, assigntransfers, set assigns, sets over and otherwise convey conveys to the Trustee without recourse for the use and benefit of the Certificateholders Certificateholders, without recourse, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameTrust Fund. In connection with any such transfer and assignment, the Depositor does hereby has delivered to, and deposited with, the Trustee (or, in the case of the Delay Delivery Mortgage Loans, will deliver to, and deposit with, the Trustee within thirty (30) days following the Closing Date) (except as provided in clause (vi) below) for the benefit of the Certificateholders, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original Mortgage Note, endorsed in blankby the Seller or the originator of such Mortgage Loan, without recourse, or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, ________________ without recourse," ", with all prior and intervening endorsements showing that show a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off DateSeller;
(ii) the original recorded Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blanka duly executed assignment of the Mortgage to "The Bank of New York, a New York banking corporation, as trustee under the Pooling and Servicing Agreement dated as of February 1, 1999, CWABS, Inc., Asset-Backed Certificates, Series 1999-1, without recourse" (each such assignment, when duly and validly completed, to be in recordable form and sufficient to effect the assignment of and transfer to the assignee thereof, under the Mortgage to which such assignment relates);
(iv) the original recorded intervening Assignment assignment or Assignments showing a complete chain assignments of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentstogether with all interim recorded assignments of such Mortgage;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original or duplicate original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedand all riders thereto or, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailablehas not been received from the insurer, a written commitment such original or uniform binder or preliminary report of duplicate original lender's title issued by the title insurance or escrow company. If any policy and all riders thereto shall be delivered within one year of the documents referred to Closing Date. In the event that in Sections 2.01(iiconnection with any Mortgage Loan the Seller cannot deliver the original recorded Mortgage or all interim recorded assignments of the Mortgage satisfying the requirements of clause (ii), (iii) or (iv) above has as of concurrently with the Closing Date been submitted for recording but either (x) has not been returned from execution and delivery hereof, the applicable public recording office Seller shall deliver or (y) has been lost or such public recording office has retained cause to be delivered to the original Trustee a true copy of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy Mortgage and of each such document undelivered interim assignment of the Mortgage each certified by the Originator in Seller, the applicable title company, escrow agent or attorney, or the originator of such Mortgage, as the case of (x) above or the applicable public recording office in the case of (y) above may be, to be a true and complete copy of the original Mortgage or assignment of Mortgage submitted for recording. The Seller shall promptly deliver or cause to be delivered to the Trustee such original Mortgage and such assignment or assignments with evidence of recording indicated thereon upon receipt thereof from the public recording official, or a copy thereof, certified, if appropriate, by the relevant recording office, but in no event shall any such delivery be made later than 270 days following the Closing Date; provided that was in the event that by such date the Seller is unable to deliver or cause to be delivered each Mortgage and each interim assignment by reason of the fact that any such documents have not been returned by the appropriate recording office, or, in the case of each interim assignment, because the related Mortgage has not been returned by the appropriate recording office, the Seller shall deliver or cause to be delivered such documents to the Trustee as promptly as possible upon receipt thereof. If the public recording office in which a Mortgage or interim assignment thereof is recorded retains the original of such Mortgage or assignment, a copy of the original Mortgage or assignment so retained, with evidence of recording thereon, certified to be true and complete by such recording office, shall satisfy the Seller's obligations in this Section 2.01. If any document submitted for recording and pursuant to this Agreement is (2a) if such copy is certified lost prior to recording or rejected by the Originatorapplicable recording office, delivery the Seller shall immediately prepare or cause to be prepared a substitute and submit it for recording, and shall deliver copies and originals thereof in accordance with the foregoing or (b) lost after recording, the Seller shall deliver to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or Trustee a copy of such document certified by the applicable public recording office to be a true and complete copy of the originaloriginal recorded document. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor The Seller shall deliver promptly forward or cause to be delivered forwarded to the Trustee, or Trustee (a) from time to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any time additional original documents evidencing an assumption or modification of a Mortgage Loan and (b) any other documents required to be delivered by the Depositor or the Master Servicer to the Trustee within the time periods specified in this Section 2.01. With respect to each Mortgage Loan as to which the related Mortgaged Property and Mortgage File are located in (a) the State of California or (b) any other jurisdiction under the laws of which the recordation of the assignment specified in clause (iii) above is not necessary to protect the Trustee's and the Certificateholders, interest in the related Mortgage Loan, as evidenced by an Opinion of Counsel, delivered by the Seller to the Trustee and a copy to the Rating Agencies, in lieu of recording the assignment specified in clause (iii) above, the Seller may deliver an unrecorded assignment in blank, in form otherwise suitable for recording to the Trustee; provided that if the related Mortgage has not been returned from the applicable public recording office, such assignment, or any copy thereof, of the Mortgage may exclude the information to be provided by the recording office. As to any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer procedures of the recording information for a Mortgage) submit or cause to preceding sentence shall be submitted for recording, at no expense to applicable only so long as the Trust Fund or the Trustee, related Mortgage File is maintained in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above possession of the Trustee in the following form: "[_], as Trustee under the applicable agreement." State or jurisdiction described in such sentence. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master ServicerServicer gives written notice to the Trustee that recording is required to protect the right, as the case may be, in trust for the benefit title and interest of the Trustee on behalf of the CertificateholdersCertificateholders in and to any Mortgage Loan, (ii) a court recharacterizes the sale of the Mortgage Loans as a financing, or (iii) as a result of any change in or amendment to the laws of the State or jurisdiction described in the first sentence of this paragraph or any applicable political subdivision thereof, or any change in official position regarding application or interpretation of such laws, including a holding by a court of competent jurisdiction, such recording is so required, the Trustee shall complete the assignment in the manner specified in clause (iii) of the second paragraph of this Section 2.01 and the Seller shall submit or cause to be submitted for recording as specified above or, should the Seller fail to perform such obligations, the Trustee shall cause the Master Servicer, at the Master Servicer's expense, to cause each such previously unrecorded assignment to be submitted for recording as specified above. In the event a Mortgage File is released to the Master Servicer as a result of the Master Servicer's having completed a Request for Release in the form of Exhibit M, the Trustee shall complete the assignment of the related Mortgage in the manner specified in clause (iii) of the second paragraph of this Section 2.01. So long as the Trustee maintains an office in the State of California, the Trustee shall maintain possession of and not remove or attempt to remove from the State of California any of the Mortgage Files as to which the related Mortgaged Property is located in such State. In the event that any such original document is required pursuant the Seller fails to the terms of this Section to be a part record an assignment of a Mortgage FileLoan as herein provided within 90 days of notice of an event set forth in clause (i), (ii) or (iii) of the above paragraph, the Master Servicer shall prepare and, if required hereunder, file such document shall be delivered promptly to the Trustee, or to assignments for recordation in the appropriate Custodian on behalf of the Trusteereal property or other records office. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to The Seller hereby appoints the Master Servicer. The parties hereto understand Servicer (and agree that it is not intended that any mortgage loan be included successor servicer hereunder) as its attorney-in-fact with full power and authority acting in its stead for the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawspurpose of such preparation, execution and filing.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, sell, set over and otherwise convey to the Trustee Issuer without recourse for the benefit of the Certificateholders Noteholders and the Insurers, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, the Pool Insurance Policy, the Interest Rate Swap Agreement, certain payments made under the Swap Administration Agreement and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Estate. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Indenture Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Indenture Trustee, on behalf of the CertificateholdersIssuer, the Noteholders and the Insurers, acknowledges receipt of the same. In connection with such transfer and assignmentassignment to the Issuer, the Depositor does hereby deliver to, and deposit with, the Indenture Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Indenture Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Indenture Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Indenture Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Indenture Trustee, or to the appropriate Custodian on behalf of the Indenture Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Indenture Trustee, or to the appropriate Custodian on behalf of the Indenture Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Indenture Trustee, or to the appropriate Custodian on behalf of the Indenture Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Indenture Trustee, or to the appropriate Custodian on behalf of the Indenture Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Depositor shall cause the Seller to promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Indenture Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund Issuer or the Indenture Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Indenture Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Depositor shall cause the Seller to promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Sale and Servicing Agreement (Argent Securities Inc)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the CertificateholdersCertificateholders and the Certificate Insurer, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, with the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Certificate Insurance Policy); provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contract. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the TrusteeTrustee with the prior written consent of the Certificate Insurer (which consent shall not be unreasonably withheld), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the TrusteeTrustee or the Certificate Insurer, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Certificate Insurance Policy); provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by the HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Asset Bcked Pass Through Certs Ser 2004-W4)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, the Interest Rate Swap Agreement certain payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by or on behalf of the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, Trustee on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Xxxxx Fargo Bank, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]Xxxxx Fargo Bank, N.A.", as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 17 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Fund. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed by the originator or the originator's successor in blank, without recourse, interest (which in all cases will be the Seller or an Affiliate) in the following form: "Pay to the order of [_]Wells Fargo Bank Minnesota, N.A., as Trustee Xxxxtee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee", or with respect to any lost Mortgage Note, an original Lost Note AffidavitAffidavit stating that the original mortgage note was lost, misplaced or destroyed, together with a copy of the related mortgage note; provided provided, however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) if in connection with any Mortgage Loan, the Depositor has not caused the original Mortgage, with evidence recorded Mortgage or power of recording thereon, and attorney to be delivered to the Trustee because of a copy, certified delay caused by the appropriate public recording office, office where such Mortgage or power of attorney has been delivered for recordation or because such Mortgage or power of attorney has been lost or because such public recording office retains the original recorded Mortgage or power of attorney, if the Mortgage was executed pursuant to a File shall include, in lieu of such Mortgage or power of attorney, a photocopy of such Mortgage or power of attorney, together with evidence (a) in the case of a delay caused by the public recording thereonoffice, an Officer's Certificate of the title insurer insuring the Mortgage stating that such Mortgage and power of attorney has been delivered to the appropriate public recording office for recordation and that the original recorded Mortgage or power of attorney or a copy of such Mortgage and power of attorney certified by such public recording office to be a true and complete copy of the original recorded Mortgage and power of attorney will be promptly delivered to the Trustee upon receipt by the Depositor; or (b) in the case where a public recording office retains the original recorded Mortgage or power of attorney or in the case where a Mortgage or power of attorney is lost after recordation in a public recording office, a copy of such Mortgage or power of attorney with the recording information thereon certified by such public recording office to be a true and complete copy of the original recorded Mortgage or power of attorney;
(iii) an original Assignment assigned of the Mortgage executed by the originator or the originator's successor in blankinterest (which in all cases will be the Seller or an Affiliate) in the following form: "Wells Fargo Bank Minnesota, without recourseX.X., as Trustee under the applicable agreement";
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) ), or if any such intervening assignment has not been returned from the applicable public recording office or has been lost or if such public recording office retains the original unrecorded recorded Assignments of Mortgage, the Mortgage File shall include a photocopy of such intervening Assignmentsassignment, together with (a) in the case of a delay caused by the public recording, an Officer's Certificate of the title insurer insuring the Mortgage stating that such intervening Assignment of Mortgage has been delivered to the appropriate public recording office for recordation and that such original recorded intervening Assignment of Mortgage or a copy of such intervening Assignment of Mortgage certified by the appropriate public recording office to be a true and complete copy of the original recorded intervening Assignment of Mortgage will be promptly delivered to the Trustee upon receipt thereof by the Depositor; or (b) in the case of an intervening Assignment of Mortgage where a public recording office retains the original recorded intervening Assignment of Mortgage or in the case where an intervening Assignment of Mortgage is lost after recordation in a public recording office, a copy of such intervening Assignment with recording information thereon certified by such public recording office to be a true and complete copy of the original recorded intervening Assignment of Mortgage;
(v) the original or copies originals of each all assumption, modification, written assurance consolidation or substitution agreementextension agreements, if any; and;
(vi) the original of any guarantee executed in connection with the Mortgage Note;
(vii) if such Mortgage Loan has a Loan-to-Value Ratio at the Cut-off Date in excess of 80% (as shown in the Mortgage Loan Schedule), the original Primary Insurance Policy, or in the event such original Primary Insurance Policy is unavailable, a written commitment from the mortgage insurer to issue such policy;
(viii) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If company or an attorney's title opinion, if customary in the related jurisdiction where the Mortgaged Property is located;
(ix) the original of any security agreement, chattel mortgage or equivalent document executed in connection with the Mortgage; and
(x) if applicable, a true and complete copy, certified as such by an officer of the Seller, of each certificate or other evidence of merger or change of name, if any of the documents Mortgage Loans were acquired by the Seller by merger or acquired or originated by the Seller while conducting business under a name other than its present name and such certificate or other evidence shall not have been recorded in the public recording office where the related Mortgage is required to be recorded. The Trustee agrees to execute and deliver to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original Mortgage Note (with any exceptions noted), substantially in the form attached as Exhibit C-3 hereto. The Master Servicer shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to cause all Assignments referred to in Sections 2.01(ii)Section 2.01(iii) hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; provided, however, the Seller need not cause to be recorded any Assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's interest in the related Mortgage Loan; provided, however, notwithstanding the delivery of any Opinion of Counsel, the Master Servicer shall enforce the obligations of the Seller under the Mortgage Loan Purchase Agreement to submit each Assignment for recording, at no expense to the Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) the occurrence of a Master Servicer Event of Termination, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Seller, (iv) above has the occurrence of a servicing transfer as described in Section 7.02 hereof, (v) with respect to any one Assignment the occurrence of a foreclosure relating to the Closing Date been submitted Mortgagor under the related Mortgage and (vi) on or after the 90th day on which the payment for such Mortgage Loan was due and payable and not received. Notwithstanding the foregoing, if the Seller fails to pay the cost of recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or Assignments, such public recording office has retained expense will be paid by the original of such document, Trustee and the obligations of the Depositor to deliver such documents Trustee shall be deemed to be satisfied upon (1) delivery to reimbursed for such expenses by the Trust. The Master Servicer shall furnish the Trustee, or to the appropriate Custodian on behalf of the Trusteeits designated agent, of with a copy of each Assignment submitted for recording. In the event that any such document certified by Assignment is lost or returned unrecorded because of a defect therein, the Originator in Master Servicer shall cause the Seller to promptly have a substitute Assignment prepared or have such defect cured, as the case of (x) above or the applicable public recording office in the case of (y) above may be, and thereafter cause each such Assignment to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policyduly recorded. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption assumption, modification, consolidation or modification extension of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Union Planters Mort Pass THR Cert Ser 2000-Up1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the (i) each Mortgage Loans Loan identified on the Mortgage Loan Schedule, including the related Cut-Off Date Principal Balance, all interest accruing thereon after the Cut-Off Date and all collections in respect of interest and principal due after the Cut-Off Date; (ii) property which secured each such Mortgage Loan and which has been acquired by foreclosure or deed in lieu of foreclosure; (iii) its interest in any insurance policies in respect of the Mortgage Loans; (iv) all proceeds of any of the foregoing; (v) the rights of the Depositor under the Mortgage Loan Purchase Agreement, and (vi) all other assets included or to be included in REMIC Ithe Trust Fund; provided, payments made however, so long as the Servicer is an FHA Approved Mortgagee, the Commissioner of HUD shall have no obligation to recognize or deal with any person other than the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountServicer with respect to FHA Insurance. Such assignment includes all interest and principal received by due to the Depositor or the Master Servicer on or after the Cut-Off Date with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the sameLoans. In connection with such transfer and assignment, the Depositor Seller, on behalf of the Depositor, does hereby deliver to, and deposit withwith the Trustee, or its designated agent (the Trustee "Custodian"), the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) so transferred and assigned:
(i) the original Mortgage Note, endorsed either (A) in blank, without recourse, blank or (B) in the following form: "Pay to the order of [_]The Chase Manhattan Bank, as Trustee under the applicable agreementPooling and Servicing Agreement, dated as of August 1, 2001, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manxxxxxx Bank, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2001-CB3, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee", or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only together with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% a copy of the Pool Balance as of the Cut-off Daterelated Mortgage Note;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonthereon or, if such Mortgage or power of attorney has been submitted for recording but has not been returned from the applicable public recording office, has been lost or is not otherwise available, a copy of such Mortgage or power of attorney, as the case may be, certified to be a true and complete copy of the original submitted for recording;
(iii) an original Assignment of Mortgage, in form and substance acceptable for recording. The Mortgage shall be assigned either (A) in blankblank or (B) to "The Chase Manhattan Bank, as Trustee under the Pooling and Servicing Agreement, dated as of August 1, 2001, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manxxxxxx Bank, C-BASS Mortgage Loan Asset-Backed Certificates, Series 2001-CB3, without recourse";
(iv) the an original recorded copy of any intervening Assignment or Assignments assignment of Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignmentsassignments;
(v) the original or a certified copy of lender's title insurance policy;
(vi) the original or copies of each assumption, modification, written assurance or substitution agreement, if any;
(vii) for each FHA Loan, the original Mortgage Insurance Certificate;
(viii) for each VA Loan, the original Loan Guaranty Certificate;
(ix) [Reserved]; and
(vix) the original, or a certified copy of the, Primary Insurance Policy. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor on or prior to the Closing Date an acknowledgment of receipt of the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally Mortgage Note (with any exceptions noted), substantially in the jurisdiction where form attached as Exhibit F-3 hereto. The Seller or Servicer shall within 90 days following the Mortgaged Property Closing Date, with respect to each Mortgage Loan that is located, together with all endorsements or riders which were issued with or subsequent subject to the issuance provisions of the Homeownership and Equity Protection Act of 1994 place a legend on the original Mortgage Note indicating the satisfaction of the provisions of such policyAct and the regulations issued thereunder, to the effect that the Mortgage Loan is subject to special truth in lending rules. The Servicer shall promptly (and in no event later than thirty days following the Closing Date) submit or cause to be submitted for recording, at the Servicer's expense and at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such original title policy Assignment is unavailablelost or returned unrecorded because of a defect therein, the Seller shall promptly prepare or cause to be prepared a written commitment substitute Assignment or uniform binder cure or preliminary report of title issued by cause to be cured such defect, as the title insurance or escrow companycase may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections Section 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor Seller to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of no later than the TrusteeClosing Date, of a copy of each such document certified by the Originator Seller in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the OriginatorSeller, delivery to the Trustee, Trustee or to the appropriate Custodian on behalf of the TrusteeCustodian, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor The Seller shall deliver or cause to be delivered to the Trustee, Trustee or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Upon discovery or receipt of notice of any materially defective document in, or that a document is missing from, a Mortgage File, the Seller shall promptly (and in no event later than thirty (30) Business Days, subject have 120 days to extension upon a mutual agreement between the Master Servicer and the Trustee, cure such defect or 150 days following the later of (i) the Closing Date, (ii) in the date on which case of missing Mortgages or Assignments or deliver such missing document to the Trustee or the Custodian. If the Seller receives does not cure such defect or deliver such missing document within such time period, the Assignment from Seller shall either repurchase or substitute for such Mortgage Loan in accordance with Section 2.03. The Seller shall cause the Custodian and (iii) the date Assignments of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause Mortgage which were delivered in blank to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above completed and shall execute each original Assignment cause all Assignments referred to in Section 2.01(iii) above hereof and, to the extent necessary, in Section 2.01(iv) hereof to be recorded; provided, however, the Seller need not cause to be recorded any Assignment which relates to a Mortgage Loan in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the Trustee and the Rating Agencies, the recordation of such assignment is not necessary to protect the Trustee's interest in the following form: "[_]related Mortgage Loan. The Seller shall be required to deliver such assignments for recording within 30 days of the Closing Date. The Seller shall furnish the Trustee, as Trustee under the applicable agreement." or its designated agent, with a copy of each assignment of Mortgage submitted for recording. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared have a substitute Assignment prepared or cure or cause to be cured have such defectdefect cured, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any Mortgage Note is endorsed in blank as of the Closing Date, promptly following the Closing Date the Seller shall cause to be completed such original document is required pursuant endorsements "Pay to the terms order of this Section to be a part The Chase Manhattan Bank, as Trustee under the Pooling and Servicing Agreement, dated as of a Mortgage FileAugust 1, such document shall be delivered promptly 2001, among Credit-Based Asset Servicing and Securitization LLC, Residential Asset Funding Corporation, Litton Loan Servicing LP and The Chase Manhattan Bank, C-BASS Mortgagx Xxxx Asset-Backed Certificates, Series 2001-CB3, without recourse." The Depositor herewith delivers to the Trustee, or to the appropriate Custodian on behalf Trustee an executed copy of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsLoan Purchase Agreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Residential Asset Funding Corp)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of WMC Secured Assets Corp., Mortgage Pass-Through Certificates, Series 199_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of WMC Secured Assets Corp. Mortgage Pass-Through Certificates, Series 199_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by WMC Mortgage Corp. to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (WMC Secured Assets Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2004-R5)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 17 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amount and the Trustee, on behalf of required deposit to the Certificateholders, acknowledges receipt of the sameInterest Coverage Account. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, assigned and the Depositor shall shall, in accordance with Section 2.11, deliver or cause to be delivered to the Custodian Trustee with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, blank or in the following form: "Pay to the order of [_]Bankers Trust Company of California, N.A., as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned of the Mortgage in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments);
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The Trustee agrees to execute and deliver (or cause the Custodian to execute and deliver) to the Depositor and the NIMs Insurer on or prior to the Closing Date an acknowledgment of receipt of the Mortgage Note (with any exceptions noted), substantially in the form attached as Exhibit C-1 hereto. The Master Servicer (in its capacity as Originator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in section 2.01(iii) above in the following form: "Bankers Trust Company of California, N.A., as Trustee under the applicable agreement". In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Originator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the assignments of Mortgage shall not be required to be completed and submitted for recording with respect to any Mortgage Loan only if the NIMs Insurer, Trustee and each Rating Agency has received an opinion of counsel, satisfactory in form and substance to the Trustee and each Rating Agency, to the effect that the recordation of such assignments in any specific jurisdiction is not necessary to protect the Trustee's interest in the related Mortgage Note; provided further, however, notwithstanding the delivery of any opinion of counsel, each assignment of Mortgage shall be submitted for recording by the Originator in the manner described above, at no expense to the Trust Fund or Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy, insolvency or foreclosure relating to the Originator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Originator is not the Master Servicer and with respect to any one assignment of Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments of Mortgage, such expense will be paid by the Trustee. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Flo Rate Mort Pas THR Cert Ser 01 3)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Fund. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) so transferred and assigned:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Norwest Bank Minnesota, National Association, as Trustee under for the applicable agreementregistered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-LB1, without recourse," ", with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned of the Mortgage executed in blankthe following form: "Norwest Bank Minnesota, without recourseNational Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-LB1";
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments);
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The Master Servicer (in its capacity as Originator) shall promptly (and in no event later than five Business Days following the later of the Closing Date and the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund, the Trustee or the Certificate Insurer, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Originator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Originator, the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In Certificateholders and the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.Certificate
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1996-Lb1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase AgreementAgreement (except Section 17 thereof), and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee Trustee, or to one or more Custodians as the agent or agents of the Trustee, the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments assigned (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Norwest Bank Minnesota, National Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., under the applicable pooling and servicing agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned of the Mortgage executed in blankthe following form: "Norwest Bank Minnesota, without recourseNational Association, as Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., under the applicable pooling and servicing agreement";
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments);
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The Master Servicer (in its capacity as Originator) shall promptly (and in no event later than five Business Days following the later of the Closing Date and the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to REMIC I or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Originator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Originator, the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Asset Bk Cert Ser 1998-Aq1)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of Homestar Mortgage Acceptance Corp., Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of Homestar Mortgage Acceptance Corp., Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Homestar Mortgage Acceptance Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts deposited therein). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, . the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Account and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.10, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as SellerOriginator) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller Originator receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as SellerOriginator) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller Master Servicer (in its capacity as Originator) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the SellerOriginator, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller Originator is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the SellerOriginator, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Back Pas THR Certs Ser 03 8)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee the Original Pre-Funded Amounts, the required deposit to the Interest Coverage Accounts and an executed copy of the Mortgage Loan Purchase AgreementAgreement and the PMI Policy, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "“Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original or copy of the lender's ’s title insurance policy or an attorney's ’s opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with the original or copies of all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original or copy of the title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]“Deutsche Bank National Trust Company, as Trustee under the applicable agreement." ” In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, that each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "“High-Cost Home Loan" ” as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Securities Trust 2006-M1)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby sell, transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Depositor in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights assets of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountTrust Fund. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans Loans, other than Subsequent Mortgage Loans, on or after the Cut-off Date (other than payments of principal and interest Scheduled Payments due on such the Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee, or to the Custodian as the Trustee's designated agent, the following documents or instruments with respect to each Mortgage Loan and the Depositor shall, in accordance with Section 2.11, deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Subsequent Mortgage Loan:
(A) The electronic Mortgage Loan so transferred and assignedSchedule, a copy of which has also been delivered to each Servicers, the Backup Servicer, the Master Servicer and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):Trustee.
(iB) the original The Original Mortgage Note, Note endorsed in blankblank or, without recourse, or in the following form: "Pay to the order of [_]U.S. Bank National Association, as Trustee under the applicable agreementfor Terwin Mortgage Trust 2004-3HE, Asset-Backed Certificates, Series 2004-3HE, without recourse," together with all prior and riders thereto. The Mortgage Note shall include all intervening endorsements showing a complete chain of endorsement the title from the originator to the Person so endorsing to the Trustee, or with respect to any lost Transferor.
(C) Except as provided below and for each Mortgage Note, an original Lost Note Affidavit; provided however, Loan that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loansis not a MERS Loan, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage together with all riders thereto, with evidence of recording thereon, and or, if the original Mortgage has not yet been returned from the recording office, a copy, copy of the original Mortgage together with all riders thereto certified by the Transferor to be true copy of the original of the Mortgage that has been delivered for recording in the appropriate recording office of the jurisdiction in which the Mortgaged Property is located and in the case of each MERS Loan, the original Mortgage together with all riders thereto, noting the presence of the MIN of the Loan and either language indicating that the Mortgage Loan is a MOM Loan or if the Mortgage Loan was not a MOM Loan at origination, the original Mortgage and the assignment thereof to MERS, with evidence of recording indicated thereon, or a copy of the Mortgage certified by the public recording office in which such Mortgage has been recorded.
(D) In the case of each Mortgage Loan that is not a MERS Loan, the original Assignment of each Mortgage in blank or, to "U.S. Bank National Association, as Trustee for Terwin Mortgage Trust 2004-3HE, Asset-Backed Certificates, Series 2004-3HE, without recourse."
(E) The original policy of title insurance (or a preliminary title report, commitment or binder if the original title insurance policy has not been received from the title insurance company).
(F) Originals of any intervening assignments of the Mortgage, with evidence of recording thereon or, if the original intervening assignment has not yet been returned from the recording office, a copy of such assignment certified to be a true copy of the recorded power original of attorneythe assignment which has been sent for recording in the appropriate jurisdiction in which the Mortgaged Property is located.
(G) Originals of all assumption and modification agreements, if any. If in connection with any Mortgage Loan, the Depositor cannot deliver the Mortgage, Assignments of Mortgage was executed pursuant to a power of attorneyor assumption, consolidation or modification, as the case may be, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) if applicable, concurrently with the original recorded intervening Assignment or Assignments showing execution and delivery of this Agreement solely because of a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated delay caused by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office where such Mortgage, Assignments of Mortgage or (y) assumption, consolidation or modification, as the case may be, has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted delivered for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) aboverecordation, the Depositor shall deliver or cause to be delivered to the TrusteeTrustee (or the Custodian) written notice stating that such Mortgage or assumption, consolidation or modification, as the case may be, has been delivered to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereofpublic recording office for recordation. Thereafter, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer Trustee (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the TrusteeCustodian) such Mortgage, in the appropriate public office for real property recordsAssignments of Mortgage or assumption, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost consolidation or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defectmodification, as the case may be, and thereafter with evidence of recording indicated thereon, if applicable, upon receipt thereof from the public recording office. To the extent any required endorsement is not contained on a Mortgage Note or an Assignment of Mortgage, the Depositor shall make or cause each such Assignment endorsement to be duly recordedmade. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with With respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Loan, none of the rating on any Class of Certificates; provided furtherDepositor, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, the Servicers, the Securities Administrator or the Trustee shall be obligated to cause to be recorded the Assignment of Mortgage referred to in this Section 2.01. In the event an Assignment of Mortgage is not recorded, the Master Servicer or each Servicer, as applicable, shall have no liability for its failure to receive and act on notices related to such Assignment of Mortgage. The ownership of each Mortgage Note, the case may be, Mortgage and the contents of the related Mortgage File is vested in trust for the benefit of the Trustee on behalf of the Certificateholders. In None of the event Depositor, the Master Servicer, the Servicers nor the Securities Administrator shall take any action inconsistent with such ownership and shall not claim any ownership interest therein. The Depositor, the Master Servicer, the Servicers and Securities Administrator shall respond to any third party inquiries with respect to ownership of the Mortgage Loans by stating that any such original document ownership is required pursuant to held by the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian Trustee on behalf of the TrusteeCertificateholders. Any such original document Mortgage documents relating to the Mortgage Loans not delivered to the Trustee (or the Custodian) are and shall be held in trust by the Master Servicer prior to the related Servicing Transfer Date and thereafter by the applicable Servicer, for the benefit of the Trustee as the owner thereof, and the Master Servicer's or such Servicer's, as applicable, possession of the contents of each Mortgage File so retained is for the sole purpose of servicing the related Mortgage Loan, and such retention and possession by the Master Servicer or such Servicer, as applicable, is in a custodial capacity only. The Depositor agrees to take no action inconsistent with the Trustee's ownership of the Mortgage Loans, to promptly indicate to all inquiring parties that the Mortgage Loans have been sold and to claim no ownership interest in the Mortgage Loans. It is not required the intention of this Agreement that the conveyance of the Depositor's right, title and interest in and to the Trust Fund pursuant to this Agreement shall constitute a purchase and sale and not a loan. If a conveyance of Mortgage Loans from the terms Seller to the Depositor is characterized as a pledge and not a sale, then the Depositor shall be deemed to have transferred to the Trustee all of the Depositor's right, title and interest in, to and under the obligations of the Seller deemed to be secured by said pledge; and it is the intention of this Agreement that the Depositor shall also be deemed to have granted to the Trustee a first priority security interest in all of the Depositor's right, title, and interest in, to and under the obligations of the Seller to the Depositor deemed to be secured by said pledge and that the Trustee shall be deemed to be an independent custodian for purposes of perfection of the security interest granted to the Depositor. If the conveyance of the Mortgage Loans from the Depositor to the Trustee is characterized as a pledge, it is the intention of this Agreement that this Agreement shall constitute a security agreement under applicable law, and that the Depositor shall be deemed to have granted to the Trustee a first priority security interest in all of the Depositor's right, title and interest in, to and under the Mortgage Loans, all payments of principal of or interest on such Mortgage Loans, all other rights relating to and payments made in respect of the Trust Fund, and all proceeds of any thereof. If the trust created by this Agreement terminates prior to the satisfaction of the claims of any Person in any Certificates, the security interest created hereby shall continue in full force and effect and the Trustee shall be deemed to be the collateral agent for the benefit of such Person. In addition to the conveyance made in the first paragraph of this Section 2.01, the Depositor does hereby convey, assign and set over to be a the Trustee for the benefit of the Certificateholders its rights and interests under the Sale Agreement, including the Depositor's right, title and interest in the representations and warranties contained in the Sale Agreement, the rights in the Transfer Agreement described therein, and the benefit of the repurchase obligations and the obligation of the Seller contained in the Sale Agreement to take, at the request of the Depositor or the Trustee, all action on its part which is reasonably necessary to ensure the enforceability of a Mortgage FileLoan. The Trustee hereby accepts such assignment, and shall be delivered promptly entitled to exercise all rights of the Master ServicerDepositor under the Sale Agreement as if, for such purpose, it were the Depositor. The parties hereto understand foregoing sale, transfer, assignment, set-over, deposit and agree conveyance does not and is not intended to result in creation or assumption by the Trustee of any obligation of the Depositor, the Seller, or any other Person in connection with the Mortgage Loans or any other agreement or instrument relating thereto. It is agreed and understood by the Depositor, the Servicer and the Trustee that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is either (i) a "High-Cost Home Loan" as defined by HOEPA in the New Jersey Home Ownership Act effective November 27, 2003; or any other applicable predatory or abusive lending laws(ii) a "High-Cost Home Loan" as defined in the New Mexico Home Loan Protection Act effective January 1, 2004.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Merrill Lynch Mort Inv Inc Asst Back Certs Ser TMTS 2004 3he)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, certain payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. Such assignment includes all interest and principal received by or on behalf of the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase AgreementAgreement and the Pool Policy, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Custodian on behalf of the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Custodian, the following documents or instruments (a "“Mortgage File"”):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "“Pay to the order of [_]Wxxxx Fargo Bank, N.A., as Trustee under the applicable agreement, without recourse," ” with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's ’s title insurance policy or an attorney's ’s opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's ’s title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's ’s title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee), following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, Trustee in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_]“Wxxxx Fargo Bank, N.A.”, as Trustee under the applicable agreement." ” In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test[reserved], (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or MortgageAssignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer Seller is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "“High-Cost Home Loan" ” as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee Trustee, without recourse recourse, for the benefit of the Certificateholders and the Certificate Insurer, all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Accounts, and the Trustee, on behalf of the CertificateholdersCertificateholders and the Certificate Insurer, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Policy); provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The Depositor does hereby establish, pursuant to the further provisions of this Agreement and the laws of the State of New York, an express trust (the "Trust") and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement. The parties hereto acknowledge and agree that it is the policy and intention of the Trust to acquire only Mortgage Loans meeting the requirements set forth in this Agreement. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by the HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Assignment Agreement, payments made to the Trust Administrator by the Cap Administrator under the Cap Administration Agreement and the Cap Account, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy copies of the Mortgage Loan Purchase Assignment Agreement, and the Trustee, Trustee and the Trust Administrator acknowledge receipt of the same on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee or a Custodian on its behalf, the following documents or instruments (a “Mortgage File”) with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File")::
(i) the original The Mortgage Note, endorsed by manual or facsimile signature without recourse by the Originator or an Affiliate of the Originator in blank, without recourse, blank or in the following form: "Pay to the order of [_], as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator named payee to the Person so endorsing Trustee or from the named payee to the Affiliate of the Originator and from such Affiliate to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) The original recorded Mortgage, noting the original Mortgagepresence of the MIN of the Mortgage Loan, if applicable, and language indicating that the Mortgage Loan is a MOM Loan if the Mortgage Loan is a MOM Loan, with evidence of recording thereon, and thereon or a copy, copy of the Mortgage certified by the appropriate public recording office, of office in those jurisdictions where the recorded power of attorney, if public recording office retains the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereonoriginal;
(iii) Unless the Mortgage Loan is registered on the MERS® System, an original Assignment assigned assignment from the Originator or an Affiliate of the Originator to the Trustee in blankblank or in recordable form of the Mortgage which may be included, without recourse;
(iv) where permitted by local law, in a blanket assignment or assignments of the original recorded Mortgage to the Trustee, including any intervening Assignment or Assignments assignments and showing a complete chain of assignment title from the originator original mortgagee named under the Mortgage to the Person assigning the Mortgage Loan to the Trustee as contemplated by (or to MERS, noting the immediately preceding clause presence of the MIN, if the Mortgage Loan is registered on the MERS® System);
(iiiiv) Any original assumption, modification, buydown or conversion-to- fixed-interest-rate agreement applicable to the original unrecorded intervening Assignments;Mortgage Loan; and
(v) the The original or copies a copy of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy (which may be a certificate or an attorney's opinion a short form policy relating to a master policy of title or similar guarantee of title acceptable insurance) pertaining to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policyProperty, or in the event such original title policy is unavailable, a copy of the preliminary title report and the lender’s recording instructions, with the original to be delivered within 180 days of the Closing Date or an attorney’s opinion of title in jurisdictions where such is the customary evidence of title; or in the event such original or copy of the title insurance policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has In instances where an original recorded Mortgage cannot been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of be delivered by the Depositor to deliver such documents shall be deemed to be satisfied upon the Trustee (1) delivery to the Trustee, or to the appropriate a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, due to a delay in connection with the recording of a copy such Mortgage, the Depositor may, (a) in lieu of each delivering such document certified by the Originator original recorded Mortgage referred to in the case of clause (xii) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originatorabove, delivery deliver to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) a copy thereof, provided that the Depositor certifies that the original Mortgage has been delivered to a title insurance company for recordation after receipt of its policy of title insurance or binder therefor (which may be a certificate relating to a master policy of title insurance), and (b) in lieu of delivering the completed assignment in recordable form referred to in clause (iii) above to the Trustee (or a Custodian on behalf of the Trustee), deliver such assignment to the Trustee (or a Custodian on behalf of the Trustee) completed except for recording information. In all such instances, the Depositor will deliver the original recorded Mortgage and completed assignment (if applicable) to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt of such Mortgage. In instances where an original recorded Mortgage has been lost or misplaced, the Depositor or the related title insurance company may deliver, in lieu of such Mortgage, a copy of such Mortgage bearing recordation information and certified as true and correct by the office in which recordation thereof was made. In instances where the original or a copy of either the title insurance policy referred to in clause (vi) above (which may be a certificate relating to a master policy of title insurance) pertaining to the Mortgaged Property relating to a Mortgage Loan cannot be delivered by the Depositor to the Trustee (or a Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement because such policy is not yet available, the Depositor may, in lieu of delivering the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant referred to Section 2.01(viin clause (vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, promptly after receipt thereof, ) a binder with respect to such policy (which may be a certificate relating to a master policy of title insurance) and deliver the original lender's or a copy of such policy (which may be a certificate relating to a master policy of title insurance policy. The Depositor shall deliver or cause to be delivered insurance) to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee) within 180 days of the Closing Date, promptly upon receipt thereof any other in instances where an original documents constituting assumption, modification, buydown or conversion-to-fixed- interest-rate agreement cannot be delivered by the Depositor to the Trustee (or a part Custodian on behalf of the Trustee) prior to or concurrently with the execution and delivery of this Agreement, the Depositor may, in lieu of delivering the original of such agreement referred to in clause (iv) above, deliver a Mortgage File received certified copy thereof. To the extent not already recorded, except with respect to any Mortgage LoanLoan for which MERS is identified on the Mortgage or on a properly recorded assignment of the Mortgage as the mortgagee of record, includingthe Servicer, but not limited to, any original documents evidencing an assumption or modification at the expense of any Mortgage Loan. The Master Servicer (in its capacity as Seller) the Sponsor shall promptly (and in no event later than thirty (30) five Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, Days following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian Date and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the any Trust Fund or the TrusteeREMIC, in the appropriate public office for real property records, each Assignment referred delivered to in Sections 2.01(iiiit pursuant to (iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Servicer, at the expense of the Sponsor, shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, howeverbut without limiting the requirement that such Assignments be in recordable form, for administrative convenience and facilitation of servicing and to reduce closing costs, neither the Assignments Servicer nor the Trustee shall not be required to submit or cause to be submitted for recording (except with respect any Assignment delivered to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal it or a downgrading by any Rating Agency Custodian pursuant to (iii) above if such recordation shall not, as of the rating Closing Date, be required by the Rating Agencies, as a condition to their assignment on any Class the Closing Date of their initial ratings to the Certificates, as evidenced by the delivery by the Rating Agencies of their ratings letters on the Closing Date; provided furtherprovided, however, notwithstanding the foregoing, the Servicer shall submit each Assignment shall be submitted for recording by the Seller in the manner described aboverecording, at no expense to the Trust Fund or the TrusteeServicer, upon the earliest to occur of: (iA) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure of the Master Servicer Termination Test, (iiiB) the occurrence of a bankruptcy Servicer Event of Default, (C) the occurrence of a bankruptcy, insolvency or insolvency foreclosure relating to the SellerSponsor, (ivD) the occurrence of a servicing transfer as described in Section 7.02 hereof of this Agreement and (vE) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable Sponsor fails to pay the cost of recording the Assignments, such expense shall will be paid by the Trustee Servicer and the Servicer shall be reimbursable reimbursed for such expenses by the Trust as Servicing Advances. In connection with the assignment of any Mortgage Loan registered on the MERS System, the Depositor further agrees that it will cause, within 30 Business Days after the Closing Date, the MERS System to indicate that such Mortgage Loans have been assigned by the Depositor to the Trustee in accordance with this Agreement for the benefit of the Certificateholders by including in such computer files (a) the code in the field which identifies the specific Trustee and (b) the code in the field “Pool Field” which identifies the series of the Certificates issued in connection with such Mortgage Loans. The Depositor further agrees that it will not, and will not permit the Servicer to, and the Servicer agrees that it will not and will not permit a Sub-Servicer to, alter the codes referenced in this paragraph with respect to any Mortgage Loan during the term of this Agreement unless and until such Mortgage Loan is repurchased in accordance with the terms of this Agreement. With respect to a maximum of approximately 5.00% of the Original Mortgage Loans, by outstanding principal balance of the Original Mortgage Loans as of the Cut-off Date, if any original Mortgage Note referred to in (i) above cannot be located, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon delivery to the Trustee (or a Custodian on behalf of the Trustee) of a photocopy of such Mortgage Note, if available, with a lost note affidavit. If any of the original Mortgage Notes for which a lost note affidavit was delivered to the Trustee (or a Custodian on behalf of the Trustee) is subsequently located, such original Mortgage Note shall be delivered to the Trustee (or a Custodian on behalf of the Trustee) within three Business Days. The Depositor shall deliver or cause to be delivered to the Trustee (or a Custodian on behalf of the Trustee) promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an Extraordinary Trust Fund Expenseassumption, modification, consolidation or extension of any Mortgage Loan. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee, ) are and shall be held by or on behalf of the SellerSponsor, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, Trustee (or to the appropriate a Custodian on behalf of the Trustee). Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. Wherever it is provided in this Section 2.01 that any document, evidence or information relating to a Mortgage Loan be delivered or supplied to the Trustee, the Depositor shall do so by delivery thereof to the Trustee or a Custodian on behalf of the Trustee. The parties hereto understand and agree that it is not intended that any mortgage loan Mortgage Loan be included in the Trust that is a "Highhigh-Cost Home Loan" cost home loan as defined by HOEPA the Homeownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws. The Depositor hereby directs the Trust Administrator to execute, deliver and perform its obligations under the Cap Contract (in its capacity as Cap Trustee). The Depositor, the Servicer and the Holders of the Floating Rate Certificates by their acceptance of such Certificates acknowledge and agree that the Trust Administrator shall execute, deliver and perform its obligations under the Cap Contract and shall do so solely in its capacity as Cap Trustee, as the case may be, and not in its individual capacity. Every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Trust Administrator shall apply to the Trust Administrator’s execution of the Cap Contract, and the performance of its duties and satisfaction of its obligations thereunder.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Citigroup Mortgage Loan Trust 2006-Amc1)
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, Schedule and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby Company has requested the Seller to deliver to, and deposit withwith the Trustee, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in by the following form: Seller "Pay to the order of [_Name of Trustee], as Trustee under trustee without recourse" or to "Pay to the applicable agreementorder of [Name of Trustee], as trustee for holders of AB Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series 200_-_, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement endorsements from the originator to the Person so endorsing it to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgagerecorded Mortgage or, with evidence if the original Mortgage has not been returned from the applicable public recording office, a copy of recording thereon, and a copy, the Mortgage certified by the appropriate recording office, Seller to be a true and complete copy of the recorded power original Mortgage submitted to the title insurance company for recording;
(iii) a duly executed original Assignment of attorney, if the Mortgage was executed pursuant endorsed by the Seller, without recourse, to a power "[Name of attorneyTrustee], as trustee" or to "[Name of Trustee], as trustee for holders of AB Mortgage Securities Corp., Mortgage Pass-Through Certificates, Series 200_-_", with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator thereof to the Person assigning it to the Trustee or, if any such Assignment has not been returned from the applicable public recording office, a copy of such Assignment certified by the Seller to be a true and complete copy of the original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) the original of any assumption, modification, extension or guaranty agreement;
(vii) the original or a copy of the private mortgage insurance policy or original certificate of private mortgage insurance, if applicable; and
(viii) if any of the documents or instruments referred to above were executed on behalf of the Mortgagor by another Person, the original power of attorney or other instrument that authorized and empowered such Person to sign, or a copy thereof certified by the Seller (or by an officer of the applicable title insurance or escrow company) to be a true and correct copy of the original. The Seller is obligated pursuant to the Seller's Warranty Certificate to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was delivered to the Trustee pursuant to clause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policySeller, or in the event such original title policy is unavailablecannot be delivered by the Seller, a written commitment copy of such Assignment or uniform binder or preliminary report of title issued Assignments certified as true and complete by the title insurance or escrow company. If any of appropriate recording office, in those instances where copies thereof certified by the documents referred Seller were delivered to in Sections 2.01(ii), (iii) or the Trustee pursuant to clause (iv) above has as of above. Notwithstanding anything to the Closing Date been submitted for recording but either (x) has not been returned from contrary contained in this Section 2.01, in those instances where the applicable public recording office or (y) retains the original Mortgage after it has been lost or such public recording office has retained the original of such documentrecorded, the obligations of the Depositor to deliver such documents Seller shall be deemed to be have satisfied its obligations hereunder upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document Mortgage certified by the Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the originalrecorded original thereof. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded to the Trustee because of a any defect therein, the Master Servicer (in its capacity as Seller) shall promptly Seller is required to prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter the Trustee shall cause each such Assignment to be duly recordedrecorded in accordance with this paragraph. Notwithstanding the foregoingThe Seller is required, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect Seller's Warranty Certificate, to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable deliver to the Trustee as an Extraordinary Trust Fund Expensethe original of any documents assigned to the Trustee pursuant to this Section 2.01 not later than 120 days after the Closing Date. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of extent delivered by the TrusteeSeller to the Master Servicer, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, neither the Company, the Master Servicer nor the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or permit the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance of, any other Person. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans are held to be property of the Company, or if for any such original document reason this Agreement is required held or deemed to create a security interest in the Mortgage Loans, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related insurance policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof and (C) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (C) granted by [Name of Seller] to the Company pursuant to the terms Assignment Agreement; (c) the possession by the Trustee or its agent of Mortgage Notes and such other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-305, 8-313 or 8-321 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Ab Mortgage Securities Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contracts. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee and the Special Sub- Servicer an executed copy of the Mortgage Loan Purchase Agreement, Agreement and to the Trustee the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Account and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.09, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA the Home Ownership and Equity Protection Act of 1994 or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement I and the Swap AccountCap Contracts. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, the PMI Policy, the Original Pre-Funded Amounts and the required deposit to the Interest Coverage Account, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Initial Mortgage Loan so transferred and assigned, and the Depositor shall shall, in accordance with Section 2.10, deliver or cause to be delivered to the Custodian Trustee, with respect to each Subsequent Mortgage Loan, the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-Cut- off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment of the Mortgage assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lenderlenders's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans) been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) Seller shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer Seller and the Trustee, following the later of (i) the Closing Date (or the related Subsequent Transfer Date, with respect to the Subsequent Mortgage Loans), (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer Seller of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) Seller shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller (at the direction of the Master Servicer) in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall will be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the Certificateholders. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Argent Sec Inc Asset Backed Pas THR Cer Ser 2003-Wi)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under the Mortgage Loan Purchase Agreement, all other assets included or to be included in REMIC I, I (including any payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap AccountCap Contracts). Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, Agreement and the PMI Policy and the Trustee, on behalf of the CertificateholdersCertificateholders and the Certificate Insurer, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian assigned the following documents or instruments (a "Mortgage File"):
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]2.00% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document certified by the applicable Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the applicable Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section section 2.01(iii) above in the following form: "[_]Deutsche Bank National Trust Company, as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments of Mortgage shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates (in the case of the Insured Certificates, without regard to the Policy); provided further, however, each Assignment of Mortgage shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights Rights, the Certificate Insurer or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the AssignmentsAssignments of Mortgage, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The Depositor does hereby establish, pursuant to the further provisions of this Agreement and the laws of the State of New York, an express trust (the "Trust") and Deutsche Bank National Trust Company is hereby appointed as Trustee in accordance with the provisions of this Agreement. The parties hereto acknowledge and agree that it is the policy and intention of the Trust to acquire only Mortgage Loans meeting the requirements set forth in this Agreement. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending laws.
Appears in 1 contract
Conveyance of Mortgage Loans. The DepositorCompany, as of the Closing Date, and concurrently with the execution and delivery hereof, does hereby assign, transfer, assignsell, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, Company in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights Schedule (exclusive of the Depositor under the Mortgage Loan Purchase Agreement, any prepayment fees and late payment charges received thereon) and all other assets included or to be included in REMIC I, payments made to the Trustee by Trust Fund for the Swap Administrator under benefit of the Swap Administration Agreement and the Swap AccountCertificateholders. Such assignment includes all principal and interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments payment of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers Master Servicer hereby acknowledges the receipt by it of cash in an amount equal to $129,916.50 (the Trustee an executed copy of "Special Deposit"), representing interest at the Mortgage Loan Purchase AgreementRate, for the calendar month of July 2001, for those Mortgage Loans which do not have Monthly Payments due on August 1, 2001. The Master Servicer shall hold such amount in the Custodial Account and shall include such amount in the Trustee, on behalf of Available Distribution Amount for the Certificateholders, acknowledges receipt of the sameDistribution Date in August 2001. In connection with such transfer and assignment, the Depositor does hereby Company has caused the Seller to deliver to, and deposit withwith the Trustee, as described in the Trustee Mortgage Loan Purchase Agreement the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):instruments:
(i) the original Mortgage Note, Note endorsed in blank, without recourse, or in the following form: "Pay to the order Bankers Trust Company of [_]California, N.A., as Trustee trustee under the applicable agreementPooling and Servicing Agreement relating to Impac Secured Assets Corp., without recourse,Mortgage Pass-Through Certificates, Series 2001-5" with all prior and intervening endorsements showing a complete an unbroken chain of endorsement endorsements from the originator to the Person so endorsing it to the TrusteeTrustee or, or with respect to any Mortgage Loan as to which the original Mortgage Note has been permanently lost Mortgage Noteor destroyed and has not been replaced, an original a Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the recorded power of attorneyMortgage or, if the original Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned in blank, without recourse;
(iv) the original recorded intervening Assignment or Assignments showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments;
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is located, together with all endorsements or riders which were issued with or subsequent to the issuance of such policy, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such documentoffice, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, of a copy of each such document the Mortgage certified by the Originator in the case of (x) above Seller or the applicable public recording office in the case of (y) above which such Mortgage has been recorded to be a true and complete copy of the original that was Mortgage submitted for recording and recording;
(2iii) if such copy is certified by a duly executed original Assignment of the OriginatorMortgage, delivery without recourse, in recordable form to "Bankers Trust Company of California, N.A., as trustee," or to "Bankers Trust Company of California, N.A., as trustee for holders of Impac Secured Assets Corp., Mortgage Pass-Through Certificates, Series 2001-5";
(iv) the original recorded Assignment or Assignments of the Mortgage showing an unbroken chain of assignment from the originator thereof to the Trustee, or Person assigning it to the appropriate Custodian on behalf of Trustee or, if any such Assignment has not been returned from the Trusteeapplicable public recording office, promptly upon receipt thereof of either the original or a copy of such document Assignment certified by the applicable public recording office Seller to be a true and complete copy of the original. If original Assignment submitted to the title insurance company for recording;
(v) the original lender's title insurance policy, or, if such policy has not been issued, any one of an original or a copy of the preliminary title report, title binder or title commitment on the Mortgaged Property with the original policy of the insurance to be delivered promptly following the receipt thereof;
(vi) a copy of the related hazard insurance policy; and
(vii) a true and correct copy of any assumption, modification, consolidation or substitution agreement. The Seller is obligated as described in the Mortgage Loan Purchase Agreement to deliver to the Trustee: (a) either the original recorded Mortgage, or in the event such original cannot be delivered by the Seller, a copy of such Mortgage certified as true and complete by the appropriate recording office, in those instances where a copy thereof certified by the Seller was not delivered to the Trustee pursuant to Section 2.01(viclause (ii) above; and (b) either the original Assignment or Assignments of the Mortgage, with evidence of recording thereon, showing an unbroken chain of assignment from the originator to the Seller, or in the event such original cannot be delivered by the Seller, a copy of such Assignment or Assignments certified as true and complete by the appropriate recording office, in those instances where copies thereof certified by the Seller were delivered to the Trustee pursuant to clause (iv) above. However, pursuant to the Mortgage Loan Purchase Agreement, the Depositor shall deliver or Seller need not cause to be recorded any assignment in any jurisdiction under the laws of which, as evidenced by an Opinion of Counsel delivered by the Seller to the TrusteeTrustee and the Rating Agencies, or the recordation of such assignment is not necessary to the appropriate Custodian on behalf of protect the Trustee, promptly after receipt thereof, 's interest in the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any related Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing; provided, however, for administrative convenience and facilitation notwithstanding the delivery of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency Opinion of the rating on any Class of Certificates; provided further, howeverCounsel, each Assignment assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by the Holders of Certificates entitled to evidencing at least 25% of the Voting Rights or the NIMS InsurerRights, (ii) failure the occurrence of the Master Servicer Termination Testa Event of Default, (iii) the occurrence of a bankruptcy bankruptcy, insolvency or insolvency foreclosure relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgageassignment, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding anything to the foregoingcontrary contained in this Section 2.01, if in those instances where the Master Servicer is unable to pay public recording office retains the cost of recording original Mortgage after it has been recorded, the Assignments, such expense Seller shall be paid by the Trustee and shall be reimbursable deemed to have satisfied its obligations hereunder upon delivery to the 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 Trustee because of any defect therein, the Seller is required, as an Extraordinary Trust Fund Expensedescribed in the Mortgage Loan Purchase Agreement, to 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 section. The Seller is required as described in the Mortgage Loan Purchase Agreement to exercise its best reasonable efforts to deliver or cause to be delivered to the Trustee within 120 days of the Closing Date the original or a photocopy of the title insurance policy with respect to each Mortgage Loan assigned to the Trustee pursuant to this Section 2.01. All original documents relating to the Mortgage Loans that which are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of the Seller, the Depositor or the Master Servicer, as the case may be, Servicer in trust for the benefit of the Trustee on behalf of the Certificateholders. In Except as may otherwise expressly be provided herein, none of the Company, the Master Servicer or the Trustee shall (and the Master Servicer shall ensure that no Sub-Servicer shall) assign, sell, dispose of or transfer any interest in the Trust Fund or any portion thereof, or cause the Trust Fund or any portion thereof to be subject to any lien, claim, mortgage, security interest, pledge or other encumbrance. It is intended that the conveyance of the Mortgage Loans by the Company to the Trustee as provided in this Section be, and be construed as, a sale of the Mortgage Loans and the REMIC 1 Regular Interests as provided for in this Section 2.01 by the Company to the Trustee for the benefit of the Certificateholders. It is, further, not intended that such conveyance be deemed a pledge of the Mortgage Loans and the REMIC 1 Regular Interests by the Company to the Trustee to secure a debt or other obligation of the Company. However, in the event that the Mortgage Loans and the REMIC 1 Regular Interests are held to be property of the Company, or if for any reason this Agreement is held or deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, then it is intended that, (a) this Agreement shall also be deemed to be a security agreement within the meaning of Articles 8 and 9 of the New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction; (b) the conveyance provided for in this Section shall be deemed to be (1) a grant by the Company to the Trustee of a security interest in all of the Company's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to (A) the Mortgage Loans, including the Mortgage Notes, the Mortgages, any related Insurance Policies and all other documents in the related Mortgage Files, (B) all amounts payable to the holders of the Mortgage Loans in accordance with the terms thereof, (C) the REMIC 1 Regular Interests and (D) all proceeds of the conversion, voluntary or involuntary, of the foregoing into cash, instruments, securities or other property, including without limitation all amounts from time to time held or invested in the Certificate Account or the Custodial Account, whether in the form of cash, instruments, securities or other property and (2) an assignment by the Company to the Trustee of any security interest in any and all of the Seller's right (including the power to convey title thereto), title and interest, whether now owned or hereafter acquired, in and to the property described in the foregoing clauses (1)(A) through (D); (c) the possession by the Trustee or any other agent of the Trustee of Mortgage Notes and such original document is required other items of property as constitute instruments, money, negotiable documents or chattel paper shall be deemed to be "possession by the secured party" or possession by a purchaser or a person designated by such secured party, for purposes of perfecting the security interest pursuant to the terms New York Uniform Commercial Code and the Uniform Commercial Code of any other applicable jurisdiction (including, without limitation, Sections 9-115, 9-305, 8-102, 8-301, 8-501 and 8-503 thereof); and (d) notifications to persons holding such property, and acknowledgments, receipts or confirmations from persons holding such property, shall be deemed notifications to, or acknowledgments, receipts or confirmations from, financial intermediaries, bailees or agents (as applicable) of the Trustee for the purpose of perfecting such security interest under applicable law. The Company and the Trustee shall, to the extent consistent with this Section Agreement, take such actions as may be necessary to ensure that, if this Agreement were deemed to create a security interest in the Mortgage Loans and the REMIC 1 Regular Interests, such security interest would be deemed to be a part perfected security interest of a Mortgage File, first priority under applicable law and will be maintained as such document shall be delivered promptly to throughout the Trustee, or to the appropriate Custodian on behalf term of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsAgreement.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Impac Secured Assets Corp)
Conveyance of Mortgage Loans. The Depositor, concurrently with the execution and delivery hereof, does hereby transfer, assign, set over and otherwise convey to the Trustee without recourse for the benefit of the Certificateholders and the Certificate Insurer all the right, title and interest of the Depositor, including any security interest therein for the benefit of the Depositor, in and to the Mortgage Loans identified on the Mortgage Loan Schedule, the rights of the Depositor under each of the Mortgage Loan Purchase AgreementAgreements, and all other assets included or to be included in REMIC I, payments made to the Trustee by the Swap Administrator under the Swap Administration Agreement and the Swap Account. I. Such assignment includes all interest and principal received by the Depositor or the Master Servicer on or with respect to the Mortgage Loans (other than payments of principal and interest due on such Mortgage Loans on or before the Cut-off Date). The Depositor herewith delivers to the Trustee an executed copy of the Mortgage Loan Purchase Agreement, and the Trustee, on behalf of the Certificateholders, acknowledges receipt of the same. In connection with such transfer and assignment, the Depositor does hereby deliver to, and deposit with, the Trustee the following documents or instruments with respect to each Mortgage Loan so transferred and assigned, and the Depositor shall deliver or cause to be delivered to the Custodian the following documents or instruments (a "Mortgage File"):) so transferred and assigned:
(i) the original Mortgage Note, endorsed in blank, without recourse, or in the following form: "Pay to the order of [_]Bankers Trust Company, as Trustee under for the applicable agreementregistered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-5, without recourse," with all prior and intervening endorsements showing a complete chain of endorsement from the originator to the Person so endorsing to the Trustee, or with respect to any lost Mortgage Note, an original Lost Note Affidavit; provided however, that such substitutions of Lost Note Affidavits for original Mortgage Notes may occur only with respect to Mortgage Loans, the aggregate Cut-off Date Principal Balance of which is less than or equal to [_]% of the Pool Balance as of the Cut-off Date;
(ii) the original Mortgage, Mortgage with evidence of recording thereon, and a copy, certified by the appropriate recording office, of the original recorded power of attorney, if the Mortgage was executed pursuant to a power of attorney, with evidence of recording thereon;
(iii) an original Assignment assigned of the Mortgage executed in blankthe following form: "Bankers Trust Company, without recourseas Trustee for the registered holders of Salomon Brothers Mortgage Securities VII, Inc., Series 1996-5";
(iv) the original recorded intervening Assignment or Assignments of the Mortgage showing a complete chain of assignment from the originator to the Person assigning the Mortgage to the Trustee as contemplated by the immediately preceding clause (iii) or the original unrecorded intervening Assignments);
(v) the original or copies of each assumption, modification, written assurance or substitution agreement, if any; and
(vi) the original lender's title insurance policy or an attorney's opinion of title or similar guarantee of title acceptable to mortgage lenders generally in the jurisdiction where the Mortgaged Property is locatedpolicy, together with all endorsements or riders which that were issued with or subsequent to the issuance of such policy, insuring the priority of the Mortgage as a first lien on the Mortgaged Property represented therein as a fee interest vested in the Mortgagor, or in the event such original title policy is unavailable, a written commitment or uniform binder or preliminary report of title issued by the title insurance or escrow company. The Depositor shall promptly (and in no event later than five Business Days following the Closing Date) submit or cause to be submitted for recording, at no expense to REMIC I, the Trustee or the Certificate Insurer, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above. In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Depositor shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. If any of the documents referred to in Sections 2.01(ii), (iii) or (iv) above has as of the Closing Date been submitted for recording but either (x) has not been returned from the applicable public recording office or (y) has been lost or such public recording office has retained the original of such document, the obligations of the Depositor to deliver such documents shall be deemed to be satisfied upon (1) delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee of a copy of each such document certified by the relevant Originator in the case of (x) above or the applicable public recording office in the case of (y) above to be a true and complete copy of the original that was submitted for recording and (2) if such copy is certified by the relevant Originator, delivery to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof of either the original or a copy of such document certified by the applicable public recording office to be a true and complete copy of the original. Notice shall be provided to the Trustee, the Certificate Insurer and the Rating Agencies by the relevant Originator if delivery pursuant to clause (2) above will be made more than 180 days after the Closing Date. If the original lender's title insurance policy was not delivered pursuant to Section 2.01(vi) above, the Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, promptly after receipt thereof, the original lender's title insurance policy. The Depositor shall deliver or cause to be delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee promptly upon receipt thereof any other original documents constituting a part of a Mortgage File received with respect to any Mortgage Loan, including, but not limited to, any original documents evidencing an assumption or modification of any Mortgage Loan. The Master Servicer (in its capacity as Seller) shall promptly (and in no event later than thirty (30) Business Days, subject to extension upon a mutual agreement between the Master Servicer and the Trustee, following the later of (i) the Closing Date, (ii) the date on which the Seller receives the Assignment from the Custodian and (iii) the date of receipt by the Master Servicer of the recording information for a Mortgage) submit or cause to be submitted for recording, at no expense to the Trust Fund or the Trustee, in the appropriate public office for real property records, each Assignment referred to in Sections 2.01(iii) and (iv) above and shall execute each original Assignment referred to in Section 2.01(iii) above in the following form: "[_], as Trustee under the applicable agreement." In the event that any such Assignment is lost or returned unrecorded because of a defect therein, the Master Servicer (in its capacity as Seller) shall promptly prepare or cause to be prepared a substitute Assignment or cure or cause to be cured such defect, as the case may be, and thereafter cause each such Assignment to be duly recorded. Notwithstanding the foregoing, however, for administrative convenience and facilitation of servicing and to reduce closing costs, the Assignments shall not be required to be submitted for recording (except with respect to any Mortgage Loan located in Maryland) unless such failure to record would result in a withdrawal or a downgrading by any Rating Agency of the rating on any Class of Certificates; provided further, however, each Assignment shall be submitted for recording by the Seller in the manner described above, at no expense to the Trust Fund or the Trustee, upon the earliest to occur of: (i) reasonable direction by Holders of Certificates entitled to at least 25% of the Voting Rights or the NIMS Insurer, (ii) failure of the Master Servicer Termination Test, (iii) the occurrence of a bankruptcy or insolvency relating to the Seller, (iv) the occurrence of a servicing transfer as described in Section 7.02 hereof and (v) if the Seller is not the Master Servicer and with respect to any one Assignment or Mortgage, the occurrence of a bankruptcy, insolvency or foreclosure relating to the Mortgagor under the related Mortgage. Notwithstanding the foregoing, if the Master Servicer is unable to pay the cost of recording the Assignments, such expense shall be paid by the Trustee and shall be reimbursable to the Trustee as an Extraordinary Trust Fund Expense. All original documents relating to the Mortgage Loans that are not delivered to the Trustee, or to the appropriate Custodian on behalf of the Trustee, Trustee are and shall be held by or on behalf of such Originator, the Seller, the Depositor or the Master Servicer, as the case may be, in trust for the benefit of the Trustee on behalf of the CertificateholdersCertificateholders and the Certificate Insurer. In the event that any such original document is required pursuant to the terms of this Section to be a part of a Mortgage File, such document shall be delivered promptly to the Trustee, or to the appropriate Custodian on behalf of the Trustee. Any such original document delivered to or held by the Depositor that is not required pursuant to the terms of this Section to be a part of a Mortgage File, shall be delivered promptly to the Master Servicer. The parties hereto understand and agree that it is not intended that any mortgage loan be included in Depositor herewith delivers to the Trust that is a "High-Cost Home Loan" as defined by HOEPA or any other applicable predatory or abusive lending lawsTrustee executed copies of the Mortgage Loan Purchase Agreements. In addition to the foregoing, the Depositor shall cause the Certificate Insurer to deliver the Policy to the Trustee for the benefit of the Certificateholders.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Ast Bk Fl Rte Cer Se 1996-5a)
